RESOURCE MATERIALSERIES No. 79

UNAFEI
Fuchu, Tokyo, Japan

December 2009

Masaki Sasaki
Director
United Nations
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan
http://www.unafei.or.jp
unafei@moj.go.jp

CONTENTS
INTRODUCTORY NOTE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
PART ONEWORK PRODUCT OF THE 140TH
INTERNATIONAL TRAINING COURSE“The Criminal Justice Response to Cybercrime”
Visiting Experts’ Papers
•

•

•

•

•

An Introduction to Cybercrime
by Dr. Marco Gerke (Germany)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3Managing Large Amounts of Electronic Evidenceby Mr. Joel Michael Schwarz and Co-Authors (USA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32Rethinking the Storage of Computer Evidenceby Mr. Joel Michael Schwarz and Co-Authors (USA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

42

The Current Situation and Countermeasures to Cybercrime and Cyber-Terror
in the Republic of Korea
by Mr. Junsik Jang (Republic of Korea) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

46

Best Practices in Cybercrime Investigation in the Republic of Korea
by Mr. Junsik Jang (Republic of Korea) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57

Participants’ Papers•

The Criminal Justice Response to Cybercrimeby Mr. Elcio Ricardo de Carvalho (Brazil) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64•

Current Situation and Issues of Illegal and Harmful Activities in the Field ofInformation and Communication Technology in Pakistan
by Mr. Syed Abbas Ahsan (Pakistan) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

70

Country Report on Cybercrime: The Philippines
by Mr. Gilbert Caasi Sosa (Philippines)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

80

The Criminal Justice Response to Cybercrime: Thailand
by Mr. Santipatn Prommajul (Thailand)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

87

•

•

Reports of the Course••

Issues and Measures Concerning the Legal Framework to Combat Cybercrimeby Group 1  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

98

Challenges and Best Practices in Cybercrime Investigation
by Group 2  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

iii

PART TWOWORK PRODUCT OF THE ELEVENTH
INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICERESPONSE TO CORRUPTION
Visiting Experts’ Papers•

The United Nations Convention against Corruption: Its Relevance and Challenges
in Its Implementation
by Giovanni Gallo (UNODC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115•

National Anti-Corruption Strategy: the Role of Government Ministries
by Tony Kwok Man-wai (Hong Kong) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133•

Investigation of Corruption Cases
by Tony Kwok Man-wai (Hong Kong) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

Participants’ Papers•

The Criminal Justice Response to Corruption – Bangladesh Perspective –by Ms. Jahanara Pervin (Bangladesh) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146•

Effective Legal and Practical Measures in Combating Corruption
by Mr. Tshering Namygel (Bhutan) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153•

The Criminal Justice Response to Corruption (In the Context of Nepal)
by Mr. Rajan Prasad Bhattarai (Nepal)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160•

The Criminal Justice Response to Corruption
by Mr. Shreelal Poudel (Nepal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

PART THREE

WORK PRODUCT OF THE 141ST
INTERNATIONAL SENIOR SEMINAR“The Improvement of the Treatment of Offenders through the Enhancementof Community-Based Alternatives to Incarceration”
Visiting Experts’ Papers

iv•

Community-Based Alternatives to Incarceration in Thailand: Current Trends andFuture Prospects
by Kittipong Kittayarak (Thailand)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173•

Community-Based Alternatives to Incarceration
by Christine Glenn (United Kingdom)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

•Improving the Treatment of Offenders through the Enhancement of Community-Based Alternatives to Incarceration: The Philippine Experience
by Ismael Juanga Herradura (Philippines) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199•

Community-Based Alternatives in Sentencing
by Bala Reddy (Singapore) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

Participants’ Papers•

The Improvement of the Treatment of Offenders through the Enhancement ofCommunity-Based Alternatives to Incarceration
by Boitumelo Makunga (Botswana) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235•

The Criminal Justice Response to Crime Prevention - Guyana
by Fay Ingrid Clarke (Guyana)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256•

Enhancing Crime Prevention through Community-Based Alternatives toIncarceration
by Leo S. Carrillo (Philippines) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265•

Overcrowded Prisons and Present Practices and Experiences in Relation to
Community-Based Alternatives to Incarceration
by Jagath Abeysirigunawardana (Sri Lanka) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279•

Measures against Overcrowding in Uruguay’s Jails, Prisons and Reform Centres
by José Enrique Colman (Uruguay) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Reports of the Seminar•

The Use of Community-Based Alternatives at the Pre-Trial and Trial Stages to
Reduce Overcrowding in Prisonsby Group 1  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306•

Effective Measures to Improve the Treatment of Offenders through the
Enhancement of Community-Based Alternatives to Incarceration at the
Post-Sentencing Stageby Group 2  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321v

INTRODUCTORY NOTE
It is with pride that the United Nations Asia and Far East Institute for the Prevention of Crimeand the Treatment of Offenders (UNAFEI) offers to the international community the Resource
Material Series No. 79.
This volume contains the work produced in the 140th International Training Course, which was
conducted from 1 September to 10 October 2008; the work produced in Eleventh International
Training Course on the Criminal Justice Response to Corruption, which was held from 16 October
to 14 November 2008; and the work product of the 141st International Senior Seminar, which
was held from 13 January to 13 February 2009. The main theme of the 140th Course was “TheCriminal Justice Response to Cybercrime”, while the main theme of the 141st Senior Seminar was“The Improvement of the Treatment of Offenders through the Enhancement of Community-Based
Alternatives to Incarceration”.
UNAFEI, as a regional institute of the United Nations Crime Prevention and Criminal Justice
Programme Network, decided that the focus of the 140th Course would be on the subject of cybercrime
in order to provide an opportunity for criminal justice personnel with responsibility for theinvestigation, prosecution and adjudication of cybercrime to consider the various issues for the
purpose of clarifying challenges and discovering solutions suitable for their own countries.
The detrimental effects of corruption on society are many and varied. In particular, corruption
by public officials seriously undermines their integrity and neutrality in performing their official
duties, leading to public distrust of the government and its institutions and potentially resulting
in their eventual collapse. Corruption is a problem that needs constant challenge and attention;
for this reason UNAFEI holds an annual international course specifically focused on corruption
control. In recognition of the harm corruption can cause, especially in developing countries, andthe fact that it can transcend national borders, the General Assembly of the United Nations adopted
the UN Convention against Corruption in 2003. The Convention came into force in December
2005 and requires States Parties to implement a number of measures to tackle corruption in acomprehensive way, including measures directed at prevention, criminalization, international
co-operation, and asset recovery. It is hoped that all countries, including our participants’ countries,
will become party to this Convention and fully implement it, thereby taking a step closer to freeing
the world from the grip of corruption.
Regarding the 141st Seminar, the detention of offenders is one of the most basic measures usedby criminal justice systems to secure proper legal procedures in the investigation and trial of
criminal offences, and in maintaining justice and security in the community during the execution of
a sentence. However, blanket detention of all offenders is inappropriate, for a number of reasons:in consideration of the humanitarian principle of avoiding restricting prisoners’ rights more than isnecessary; to avoid the problem of prison overcrowding; and to enhance correctional and community
treatment to meet offenders’ individual requirements. The United Nations has attempted to address
this issue with various measures, including The United Nations Standard Minimum Rules for NonCustodial Measures (the Tokyo Rules), “The Vienna Declaration on Crime and Justice: Meeting the
Challenges of the Twenty-First Century”, and “The Bangkok Declaration: Synergies and Responses:
Strategic Alliances in Crime Prevention and Criminal Justice” which have, in various different ways,
guided Member States in the better treatment of offenders and the prevention of crime. However,despite the introduction of these measures and policies, the continuous increase of the prison
population and subsequent overcrowding is still one of the most pressing problems in criminal
justice in many countries. In view of the ongoing need for the formulation and implementation ofeffective community-based alternatives to incarceration, and the importance of such measures
as stressed by the various UN instruments, UNAFEI, as a regional institute of the UN Crime
Prevention and Criminal Justice Network, decided to hold this Seminar.

vii

In this issue, in regard to the 140th Course and 141st Senior Seminar, papers contributed byvisiting experts, selected individual presentation papers from among the participants, and theReports of the Course and Seminar are published. In regard to the Eleventh Corruption Course,
papers contributed by visiting experts and selected individual presentation papers from among theparticipants are published. I regret that not all the papers submitted by the Course and Seminar
participants could be published.
I would like to pay tribute to the contributions of the Government of Japan, particularly the Ministryof Justice, the Japan International Cooperation Agency, and the Asia Crime Prevention Foundation forproviding indispensable and unwavering support to UNAFEI’s international training programmes.
Finally I would like to express my heartfelt gratitude to all who so unselfishly assisted in the
publication of this series; in particular, the editor of Resource Material Series No. 79, Ms. Grace Lord.
December 2009

Masaki Sasaki
Director, UNAFEI

viii

PART ONERESOURCE MATERIAL SERIES
No. 79Work Product of the 140th International Training Course“The Criminal Justice Response to Cybercrime”

UNAFEI

140TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’
PAPERSVISITING
EXPERTS’ PAPERS

AN INTRODUCTION TO CYBERCRIME
Marco Gercke*

I. THE IMPORTANCE OF THE ABILITY TO FIGHT CYBERCRIME
A. Development towards an Information Society
The development of the Internet and its continuing growth has a significant impact on the developmentof societies worldwide. 1 Developing countries as well as developed countries have started to turninto information societies.2 The process is in general characterized by an emerging use of information
technology to access and share information.3 It offers various opportunities that range from access to
information to the ability to communicate with any user who has access to the Internet.4 These advantages
led to an ongoing process of integrating information technology into the everyday life of people worldwide.5
More than a billion people are already using the Internet.6 Not only individuals but also businesses benefit
from the emerging use of the Internet. They can offer goods and services in a global environment with very
little financial investment.7
B. Importance of the Ability to Fight Cybercrime
The ability to effectively fight against cybercrime is an essential requirement to support the initiation andcontinuation of this process.8 Without creating the legal framework that enables law enforcement agencies
to identify offenders and prosecute them, it is almost impossible to stop such cybercrime attacks. Despite
the importance of technical protection measures9 in the prevention of cybercrime it is important to highlight,that especially in those cases, where such technology is not available, failed, or was circumvented theexistence of a proper legal framework is of great importance for recreating and maintaining cyber-security.
* Professor, University of Cologne, Germany. This article is an excerpt from a publication that the author drafted for theCouncil of Europe. The author would like to thank the Council of Europe for the permission to use the publication as acontribution to this publication.
1 Related to the development of the Internet, see: Yang, Miao , ACM International Conference Proceeding Series; Vol. 113;
Proceedings of the 7th International Conference on Electronic Commerce, Page 52 – 56.
2 For more information on the information society see: Masuda , The Information Society as Post-Industrial Society; Dutta/De
Meyer/Jain/Richter , The Information Society in an Enlarged Europe; Maldoom/Marsden/Sidak/Singer , Broadband in Europe:
How Brussels can wire the Information Society; Salzburg Center for International Legal Studies, Legal Issues in the Global
Information Society; Hornby/Clarke , Challenge and Change in the Information Society.
3 World Summit on the Information Society, Document WSIS-03/GENEVA/DOC/5-E, December 2003, available at: http://www.
itu.int/wsis/docs/geneva/official/poa.html
4 See for example: Communication From The Commission To The Council, The European Parliament, The European Economic
And Social Committee And The Committee Of The Regions, Challenges for the European Information Society beyond 2005,
page 3 – available at: http://ec.europa.eu/information_society/eeurope/i2010/docs/communications/new_chall_en_adopted.pdf.
5 See Goodman , “The Civil Aviation Analogy – International Cooperation to Protect Civil Aviation Against Cyber Crime andTerrorism” in Sofaer/Goodman , “The Transnational Dimension of Cyber Crime and Terrorism”, 2001, page 69, available at: http://
media.hoover.org/documents/0817999825_69.pdf. Regarding the threat of attacks against computer systems integrated in cars,see: BBC News, Cars safe from computer viruses, 11.05.2005, available at: http://news.bbc.co.uk/1/hi/technology/4536307.stm.
6 According to the ITU, there were 1.14 billion Internet users by the start of 2007, available at: http://www.itu.int/ITU-D/
icteye.default.asp.
7 See for example: Impact of the IT Revolution on the Economy and Finance, Report from G7 Finance Ministers to the Heads
of State and Government, 2000 – available at: http://www.mof.go.jp/english/if/if020.pdf.
8 Regarding the importance of the availability of a legal framework to effectively fight Cybercrime see Gercke , The slow wakeof a global approach against Cybercrime, CRi 2006, page 140 et seqq.
9 See for example US GAO, Technology Assessment, Cybersecurity for Critical Infrastructure Protection, GAO Document
GAO-04-321, page 44 et seqq. – available at: http://www.gao.gov/new.items/d04321.pdf.

3

RESOURCE MATERIAL SERIES No.79

The importance of the ability to ensure that a legal framework for cybercrime investigation and prosecution
exists is not limited to direct measures to identify and prosecute offenders. Creating and efficiently using sucha legal framework can enhance the trust of individual users as well as businesses in the security of information
technology. If users are losing trust in information technology this can negatively influence the developmentof e-commerce in the affected countries.10 The existence of a sufficient legal framework for the fight against
cybercrime can therefore be considered one essential requirement for e-commerce.11

C. Worldwide Phenomenon
The decreasing prices of communication services is one of the reasons why the above mentioned
development towards an information society is not limited to the highly developed countries. Developing
countries are actively participating in this process.12 Since 2005 the number of Internet users in developing
countries has surpassed the number of users in developed countries.13 Efforts to enhance cyber-security
in those countries where important communication infrastructure (such as servers of search engines or
e-mail providers) is located are an important step towards cyber-security.14 But without the protection of thegrowing number of users, cyber-security cannot be achieved. The user, from an offender’s point of view, isoften the weakest point, and needs to be included in the strategy. Phenomena like botnets,15 which are basedon successful mass scale attacks against users, clearly show the importance of the ability to effectively fightagainst cybercrime in order to protect the users in those countries where Internet users are most numerous.
D. National Interaction and International Co-operation
The fight against cybercrime is proceeding with unique challenges.16 Two aspects that are of great
importance for the success of cybercrime-related investigations are the interaction of the different
organizations/institutions on the national level and international co-operation on the global level.
1. Requirements at the National Level
The investigation of cybercrime on a national level can in general only be carried out if the victim, theorganizations involved in the fight against cybercrime and the businesses whose services were used areworking together closely.
•

A first important step is the report of an offence by the victim. Very often the victims of cybercrime
do not report offences to the law enforcement agencies.17 There are two main reasons for thisphenomenon. The first reason is the fact that a number of cybercrime scams are based on theprinciple of multiple offences with a rather small profit each instead of single offences with a highprofit. If the damage caused by a single cybercrime is below a certain amount the victims will – after
evaluating the time and energy required to report and offence and provide the necessary evidence

10 Ratnasingham , The importance of trust in electronic communication, Internet Research, 1998, Vol. 8, Issue 4, page 313 et.
Seqq; Meech/Marsh, Social Factors in E-Commerce Personalization – available at: http://iit-iti.nrc-cnrc.gc.ca/iit-publicationsiti/docs/NRC-43664.pdf; Shim/Van Slyke/Jiang/Johnson , Does Trust reduce concerns for information privacy in e-commerce? –available at: http://sais.aisnet.org/2004/.%5CShim,%20VanSlyke,%20Jiang%20&%20Johnson.pdf.
11 Regarding the importance of the availability of a legal framework to effectively fight Cybercrime see Gercke , The slow wakeof a global approach against Cybercrime, CRi 2006, page 140 et seqq.
12 UK Parlamentary Office of Science and Technology, Postnote, March 2006, No. 261, ICT in Developing Countries; Nulens ,Digital Divide in Developing Countries: An Information Society in Africa, 2002; Roy , Globalisation, ICT and Developing
Nations: Challenges in the Information Age, 2005.
13 See “Development Gateway’s Special Report, Information Society – Next Steps?”, 2005, available at: http://topics.
developmentgateway.org/special/informationsociety.
14 Regarding the impact of the Council of Europe Convention on Cybercrime on the protection of infrastructure see Gercke ,National, Regional and International Legal Approaches in the Fight Against Cybercrime, CRi 2008, page 9.
15 Botnets is a term for a group of compromised computers running programmes that are under external control. For moredetails, see Wilson , Botnets, Cybercrime, and Cyberterrorism: Vulnerabilities and Policy Issues for Congress, 2007, page 4 –available at: http://www.fas.org/sgp/crs/terror/RL32114.pdf.
16 See below, section II.
17 US GAO, Cybercrime – Public and Private Enterties face challenges in addressing cyber threats, GAO document: GAO07-705 – available at: http://www.gao.gov/new.items/d07705.pdf; Computer Crime & Abuse Report (India) 2001-02, Page 8 –available at: http://www.asianlaws.org/report0102.pdf; Gross , Investigator: Report Cybercrime, Info World 2006 – available at:
http://www.infoworld.com/archives/emailPrint.jsp?R=printThis&A=/article/06/08/24/HNreportcybercrime_1.html.

4

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

with the chance that the offender is identified – decide not to report the offence. But it is not only
private users who very often do not report offences. In 2007 the FBI called for business in the US
to more intensively report cybercrime.18 The effect of the underreporting of cybercrime was also
addressed by the US Attorney General Ashcroft in 2001. He expressed the opinion that without suchreports offenders will go unpunished.19 In addition, he pointed out that the fear of bad publicity20 is
one of the main reasons why businesses do not report successful cybercrime attacks.21•

The second requirement is the ability of the law enforcement agencies to carry out the investigation
after an incident was reported by the victim. If they do not have access to the necessary technology,
did not receive the required special training or cannot base their work on a legal framework thatenables them to carry out the necessary investigations they will very likely not be able to identify
the offender.22•

In addition, efficient interaction between law enforcement agencies and the judiciary is necessary.23 One
example of the need for co-operation is the court order. In a number of countries certain investigations
require a court order.24 An inefficient interaction between law enforcement and the courts can delay
investigations and as a consequence decrease the changes to identify and prosecute the offender.

•

Finally cybercrime investigations do very often require access to certain data that is not undercontrol of the law enforcement agencies but in the possession of private businesses such as Internet
Service Providers (ISP).25 Without the assistance of Internet Service Providers investigations canbe very time consuming. A legal framework and related procedures that enable efficient co-operation
between law enforcement agencies and Internet Service Providers can significantly increase theabilities of the law enforcement agencies to carry out investigations.26

2. Requirements at the International Level
Cybercrime is a truly international phenomenon.27 Due to the structure of the network an offender
18 “The US Federal Bureau of Investigation has requested companies not to keep quiet about phishing attacks and attacks

on company IT systems, but to inform the authorities, so that they can be better informed about criminal activities on theinternet. “It is a problem for us that some companies are clearly more worried about bad publicity than they are about theconsequences of a successful hacker attack,” explained Mark Mershon, acting head of the FBI’s New York office.” See Heise
News, 27.10.2007, - available at: http://www.heise-security.co.uk/news/80152.
19 See Remarks Of Attorney General John Ashcroft at the First Annual Computer Privacy, Policy & Security Institute, 2001 –available at: http://www.justice.gov/criminal/cybercrime/AGCPPSI.htm.
20 Bases on the Computer Crime & Abuse Report (India) 2001-02 60% of the victims did not report incidents due to fear of bad
publicity. See Computer Crime & Abuse Report (India) 2001-02, Page 8 – available at:
http://www.asianlaws.org/report0102.pdf.
21 Not only bad publicity, but also fear of the consequences of freedom of information legislation that could give competitors
access to that information.
22 Regarding training activities in the OAS and the APEC see for example: Cybercrime Convention Committee document
T-CY (2006) 6 – available at: http://www.coe.int/t/dg1/legalcooperation/economiccrime/cybercrime/T-CY/(T-CY%20_2006_%20
06%20-%20e%20-%20US%20Activities%20to%20ipmrove%20cybercrime%20l_205)_en.pdf; Regarding the importance of theenforcement see Broadhurst , Development in the global legal enforcement of cyber-crime, Policing: An International Journalof Police Strategies and Management 29, page 408-433.
23 See: Communication from the Commission to the European Parliament, The Council and the Committee of the Regions, Towards
a general policy on the fight against cyber crime, COM (2007) 267 – available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0267:FIN:EN:PDF; De Hert/Fuster/Koops , Fighting Cybercrime in the two Europes. The added value of the EU
Framework Decision and the Council of Europe Convention, Revue Internationale De Droit Penal, 2006, Vol 77, page 503 et. Seqq.
24 Regarding the requirement of court orders for certain investigations see the Explanatory Report to the Convention on
Cybercrime, Nr. 174.
25 See: Callanan/Gercke , Study on the Cooperation between service providers and law enforcement against cybercrime, 2008
26 See in this context: Guidelines for the cooperation between law enforcement and internet service providers against cybercrime– available at: http://www.coe.int/t/dg1/legalcooperation/economiccrime/cybercrime/cy%20activity%20Interface2008/567_prov-dguidelines_provisional2_3April2008_en.pdf; Regarding the guidelines see: Kirk , Council of Europe, ISPs Draft Anti-Cybercrime
Guide, PC World, 01.04.2008, available at: http://www.pcworld.com/businesscenter/article/144011/council_of_europe_isps_draft_
anticybercrime_guide.html; Gercke , The Council of Europe Guidelines on the Cooperation of ISP and LEA, CRi 2008, issue 4.
27 Regarding the international dimension of Cybercrime see: Gercke , “The Slow Wake of A Global Approach Against
Cybercrime”, CRI 2006, 142.

5

RESOURCE MATERIAL SERIES No.79

can act from any place in the world and attack victims worldwide. The ability of national law enforcement
agencies to investigate those crimes that have an international dimension is limited due to the principleof national sovereignty that restricts the authorization to carry out investigation in foreign territories.28
International investigations therefore require co-operation of the law enforcement agencies based on thelegal frameworks for international co-operation.29 The related formal requirements and time needed tocollaborate with foreign law enforcement agencies often hinders international investigations.30

E. Co-operation between Law Enforcement Agencies and Private Businesses
An effective fight against cybercrime depends not only on the availability of a sufficient legislation– the relationship between the law enforcement agencies and private businesses (such as Internet
Service Provider) is considered another essential element.31 As a result the Council of Europe decided in2007 to develop a set of guidelines to improve the co-operation between law enforcement agencies andInternet Service Providers.32 The guidelines were based on a study that analyses the existing structureof co-operation.33 During the 2008 Council of Europe Octopus Interface Conference 34 the guidelines
were adopted.35 During the meeting of the Cybercrime Committee (T-CY) the committee highlighted theimportance of the new guidelines within approaches to promote co-operation.36
F. Balancing Freedom of Expression and the Need for Effective Criminal Investigations
The freedom of speech37 and data protection are two issues that are in the focus of the discussion about
the protection of Internet users.38 In addition to those measures, the prevention of cybercrime and theability of law enforcement agencies to identify offenders and hinder them from committing further offences
enhances cyber-security and thereby increases the security of the user. But in this context it is important
28 National Sovereignty is a fundamental principle in International Law. See Roth , “State Sovereignty, International Legality,
and Moral Disagreement”, 2005, page 1, available at: http://www.law.uga.edu/intl/roth.pdf.
29 Regarding the need for international co-operation in the fight against Cybercrime, see: Putnam/Elliott , “International
Responses to Cyber Crime”, in Sofaer/Goodman, “ Transnational Dimension of Cyber Crime and Terrorism”, 2001, page 35 etseqq., available at: http://media.hoover.org/documents/0817999825_35.pdf; Sofaer/Goodman , “Cyber Crime and Security – The
Transnational Dimension” in Sofaer/Goodman , “The Transnational Dimension of Cyber Crime and Terrorism”, 2001, page 1 etseqq., available at: http://media.hoover.org/documents/0817999825_1.pdf
30 See Gercke , “The Slow Wake of A Global Approach Against Cybercrime”, CRI 2006, 142. For examples, see Sofaer/
Goodman , “Cyber Crime and Security – The Transnational Dimension”, in Sofaer/Goodman , “The Transnational Dimension ofCyber Crime and Terrorism”, 2001, page 16, available at: http://media.hoover.org/documents/0817999825_1.pdf;
31 See Guidelines for the cooperation of law enforcement and internet service providers against cybercrime, No.3.
32 For more details see: Gercke , The Council of Europe Guidelines for the Cooperation between LEAs and ISP against
Cybercrime, Cri 2008, issue 4.
33 Callanan/Gercke , Study on the Cooperation between service providers and law enforcement against cybercrime - Toward
common best-of-breed guidelines?, 2008.
34 The programme of the conference is available at: http://www.coe.int/t/dg1/legalcooperation/economiccrime/cybercrime/
cy%20activity%20Interface2008/567%20IF08-m-programme3b%20Provisional%20%20(26%20march%2008).PDF. The
conclusions of the conference is available at: http://www.coe.int/t/dg1/legalcooperation/economiccrime/cybercrime/cy%20
activity%20Interface2008/567_IF08-d-concl1c.pdf.
35 Guidelines for the co-operation between law enforcement and internet service providers against cybercrime - available at:
http://www.coe.int/t/dg1/legalcooperation/economiccrime/cybercrime/cy%20activity%20Interface2008/567_prov-d-guidelines_
provisional2_3April2008_en.pdf.
36 The Cybercrime Convention Committee (T-CY), 3rd Consultations of the Parties to the Convention on Cybercrime (ETS
No. 185), Meeting Report, 2008, No. 42 - available at: http://www.coe.int/t/dg1/legalcooperation/economiccrime/cybercrime/
T-CY/T-CY_2008(04)-Final_en.pdf.
37 Regarding the principle of freedom of speech see: Tedford/HerbeckHaiman , Freedom of Speech in the United States, 2005;
Barendt , Freedom of Speech, 2007; Baker; Human Liberty and Freedom of Speech; Emord , Freedom, Technology and the First
Amendment, 1991; Regarding the importance of the principle with regard to electronic surveillance see: Woo/So , The case for
Magic Lantern: September 11 Highlights the need for increasing surveillance, Harvard Journal of Law & Technology, Vol 15, No.
2, 2002, page 530 et seqq; Vhesterman , Freedom of Speech in Australian Law; A Delicate Plant, 2000; Volokh , Freedom of Speech,
Religious Harassment Law, and Religious Accommodation Law, Loyola University Chicago Law Journal, Vol. 33, 2001, page 57 et.
seq. – available at: http://www.law.ucla.edu/volokh/harass/religion.pdf; Cohen , Freedom of Speech and Press: Exceptions to theFirst Amendment, CRS Report for Congress 95-815, 2007 – available at: http://www.fas.org/sgp/crs/misc/95-815.pdf.
38 Regarding the fundamental rights of the users that need to be protected see for example: World Summit of the Information
Society, Declaration of Principles, 2003 - http://www.itu.int/dms_pub/itu-s/md/03/wsis/doc/S03-WSIS-DOC-0004!!PDF-E.pdf.

6

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

to highlight that some of the measures designed to increase the ability of law enforcement agencies toinvestigate cybercrime that are currently discussed (such as data retention obligations) raise concernsthat the measures do interfere with the fundamental rights of the users.39 Balancing the necessity ofeffective instruments for cybercrime-related investigations and the protection of fundamental rights of theuser is therefore an important aspect that needs to be taken into consideration while implementing legal
frameworks as well as their application within the investigation.

II. THE CHALLENGE IN FIGHTING CYBERCRIME
The Internet is still one of the fastest growing areas of technical infrastructure development.40 Within thisdevelopment, it has grown at an enormous rate since the introduction of the World Wide Web’s graphical userinterface in the 1990. The process of the introduction of Internet Communication Services into everyday
life turns out to be so extensive that it appears to be adequate to speak about a trend towards an Information
Society. For society, this development goes along with great opportunities. As examples from Eastern
Europe show, the unfiltered access to information can support democracy as the flow of information is takenout of the control of state authorities. The improvement is not limited to these general developments. Law
enforcement agencies benefit from the increasing power of computer systems as well. They are today able toautomatically carry out investigations that were not possible in the past. An example is the automatic searchfor evidence on a suspect’s computer. Modern forensic systems are able to carry out a hash-values-based
search for child pornography pictures as well as for keywords in text documents.
But the integration of information technology is accompanied by serious threats as well. In a society where
nearly all services depend on the availability of information technology, attacks against this infrastructure
have great risks.41 In addition, offenders can make use of information technology to protect their criminal
activities against a discovery by law enforcement agencies. If the offenders for example encrypt childpornography images stored on their computer the automatic search functions of forensic tools will not be able
to identify them. The following chapter gives an overview of some of the most important challenges that law
enforcement agencies face while investigating and prosecuting cybercrime cases.

A. Dependence of Society on Information Technology
The modern societies are already heavily dependent on the availability of information technology, such as
Internet phone calls or e-mail communication,42 and the integration of the communication technology is still
continuing.43 This development attracts threats of attack against critical infrastructures such as electricity
supply and communication infrastructure.44 Even short interruptions of these services have the potential tocause huge financial damage to e-commerce dependant businesses.
From a cyber-security perspective this development is risky as the existing technical infrastructure
shows a number of weak points, such as the monoculture of operating systems.45 The monoculture offers a
39 Regarding the concerns see for example: Memorandum of Laws Concerning the Legality of Data Retention with regard to

the rights guaranteed by the European Convention on Human Rights, 2003 – available at: http://www.privacyinternational.org/
countries/uk/surveillance/pi_data_retention_memo.pdf.
40 Related to the development of the Internet see: Yang , Miao , ACM International Conference Proceeding Series; Vol. 113;
Proceedings of the 7th International Conference on Electronic Commerce, Page 52 – 56; According to “Internet World Stats”
about one billion people were using the Internet by 2006 (the statistics are available at: http://www.internetworldstats.com/
stats.htm - March 2006).
41 Related to Cyberterrorism see: Sofaer , The Transnational Dimension of Cybercrime and Terrorism, Page 221 – 249.
42 It was currently reported that the US Department of Defence to shut down their e-mail system after a hacking attack. See:
http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=3996.
43 See Goodman , The Civil Aviation Analogy – International Cooperation to Protect Civil Aviation Against Cyber Crime andTerrorism - in Sofaer/Goodman , The Transnational Dimension of Cyber Crime and Terrorism, 2001, page 69 – available at:
http://media.hoover.org/documents/0817999825_69.pdf.
44 Regarding the impact of attacks see: Sofaer/Goodman , Cybercrime and Security – The Transnational Dimension, in Sofaer/
Goodman , The Transnational Dimension of Cyber Crime and Terrorism, 2001, page 3 – available at: http://media.hoover.org/
documents/0817999825_1.pdf.
45 An analysis by “Red Sheriff” in 2002 stated that more than 90% of the users worldwide use Microsoft’s operating systems(source: www.tecchannel.de - 20.09.2002).

7

RESOURCE MATERIAL SERIES No.79

number of advantages to offenders as they can design their attack to be most effective by concentrating only
on one target system. The successful attacks carried out by computer viruses and worms do clearly provethe danger of those attacks for countries that depend on the availability of the information infrastructure.46
The dependence of society on information technology on the one hand side and the threats of attacks
against this infrastructure should influence the development of strategies to prevent attacks. These could
contain the development and promotion of technical means of protection as well as ensuring sufficient lawsthat enable the law enforcement agencies to effectively fight against cybercrime.

B. Number of Users
Currently more than one billion people worldwide use the Internet47 and it is likely that this number will
increase continuously in the coming years. Due to the international dimension of the network the number ofpossible offenders is significant. Even if only one percent of the users made use of information technology tocommit criminal offences the total number of offenders would be more 10 million. The number of users andInternet websites is related to the question how to identify web pages with illegal content within billions of
web pages available in the Internet. This is only one example that shows how difficult it is for investigating
authorities to fight cybercrime.
C. Availability of Devices
The requirements with regard to the tools that are necessary to commit computer crimes are rather low.
In order to commit a cybercrime three elements are in general necessary:•••

Hardware
Software
Internet Access

Rather cheap computer hardware is available in most countries in the world and its power is increasing
continuously.48 Even without access to the latest generation of computer hardware offenders are able tocommit serious crimes. As a matter of fact the criminals are not limited to latest versions of high priced
computers but can make use of used computer technology that is less expensive.
In addition to the hardware committing an offence does in many cases require special software tools. Suchtools are not only available for sale but are also offered for free download.49 One of the examples of such tools
is software that automatically scans for open ports.50 Due to the use of mirroring techniques and peer-topeer exchange it is nearly impossible to prevent the availability of such devices by technical means.51
46 A demonstration for the threat of even short interruptions of Internet and computer services was the harm caused by

the computer worm “Sasser”. In 2004, the computer worm affected computers running vulnerable versions of Microsoft’s
operation System Windows. As a result of the spreading of the worm a number of offices had to stop their services. Amongthem the U.S. airline “Delta Airlines” that had to cancel several trans-Atlantic flights because its computer systems had
been swamped by the worm; and the electronic mapping services of the British Coastguard was disabled for a few hours. See
Heise News, 04.01.2005 – available at: http://www.heise.de/newsticker/meldung/54746; BBC News, Sasser net worm affects
millions, 04.05.2004 – available at: http://news.bbc.co.uk/1/hi/technology/3682537.stm.
47 According to “Internet World Stats” more than 1.15 billion people were using the Internet by 2007 (the statistics areavailable at: http://www.internetworldstats.com/stats.htm).
48 Based on the observation by Gordon Moore the power of computers per unit cost doubles every 24 months (Moore’s Law).
For more information see Moore , Cramming more components onto integrated circuits, Electronics, Volume 38, Number 8,1965 – available at: ftp://download.intel.com/museum/Moores_Law/Articles-Press_Releases/Gordon_Moore_1965_Article.pdf;
Stokes , Understanding Moore’s Law – available at: http://arstechnica.com/articles/paedia/cpu/moore.ars/.
49 Websense Security Trends Report 2004, page 11 – available at: http://www.websense.com/securitylabs/resource/
WebsenseSecurityLabs20042H_Report.pdf; Information Security - Computer Controls over Key Treasury Internet Payment
System, GAO 2003, page 3 – available at: http://www.globalsecurity.org/security/library/report/gao/d03837.pdf. Sieber , Councilof Europe Organised Crime Report 2004, page 143.
50 Ealy , A New Evolution in Hack Attacks: A General Overview of Types, Methods, Tools, and Prevention, page 9 et seqq. –available at: http://www.212cafe.com/download/e-book/A.pdf.
51 In order to prevent availability of such tools some countries criminalize the production and offer of such tools. An example ofsuch a provision can be found in Art. 6 Convention on Cybercrime.

8

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

Finally, committing cybercrime requires access to the Internet. It is very likely that within the given
opportunities the offender will focus on ways to access the Internet that do not allow the law enforcement
agencies to identify him or her or at least make their investigations more difficult. Examples for such meansof anonymous access are public Internet terminals and open (wireless) networks.52

D. Availability of Information
As pointed out above the Internet contains millions of webpages.53 One of the key elements for the
success of the Internet is the possibility to find relevant information from a wide range of available sources.
In this context the success of the Internet is not only influenced by the possibility to publish information
but also by the existence of powerful search engines that enable the users to search millions of webpages
within seconds. “Googlehacking” or “Googledorks” describe the abuse of search engines to filter throughlarge amounts of search results for information related to computer security issues – e.g. with the intention
to search for insecure password protection systems.54 Apart from that, offenders can use the information
made available by services like satellite picture providers to prepare an attack.55 A training manual that was
found during investigations against members of a terrorist group highlighted how useful the Internet can be
to gather information about possible targets.56 It was recently discovered that military units that attacked
British troops in Afghanistan used satellite pictures taken from Goole Earth to plan their attacks.57
E. International Dimension
Very often data transfer processes affect more than one country.58 This is a result of the design of the
network as well as the Internet protocol that ensures that successful transmissions can be made, even if
direct lines are temporarily blocked.59 In addition, a large number of Internet services (like for example
hosting services) are offered by companies that are based abroad.60
In those cases where the offender is not based in the same country where the victim is located the
52 With regard to the advantages of wireless networks for the development of an IT infrastructure in developing countries

see: The Wireless Internet Opportunity for Developing Countries, 2003 – available at: http://www.firstmilesolutions.com/
documents/The_WiFi_Opportunity.pdf.
53 The Internet Systems Consortium identified nearly 490. Million Domains (not to be mixed with webpages) – See: Internet
Domain Survey, July 2007 – available at: http://www.isc.org/index.pl?/ops/ds/reports/2007-07/; The Internet monitoring
company Netcraft reported in August 2007 that nearly 130 Million websites – available at: http://news.netcraft.com/
archives/2007/08/06/august_2007_web_server_survey.html.
54 For more information see: Long/Skoudis/van Eijkelenborg , Google Hacking for Penetration Testers, 2005; Dornfest/Bausch/
Calishain , Google Hacks: Tips & Tools for Finding and Using the World’s Information, 2006.
55 An example is the “Terrorist Handbook” – a pdf-document that contains detailed information on how to build explosives,
rockets and other weapons.
56 “Using public sources openly and without resorting to illegal means, it is possible to gather at least 80% of all information
required about the enemy”. The reports about the sources of the quotation varies: The British High Commissioner Paul
Boateng mentions in a speech in 2007 that the quote was “contained in the Al Qaeda training manual that was recovered froma safe house in Manchester” (see: Boateng, The role of the media in multicultural and multifaith societies, 2007 – available
at: http://www.britishhighcommission.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1125560437610&a=KArticle&aid=1171452755624. The US Department of Defence reported that the quote was taken froman Al Qaeda Training Manual recovered in Afghanistan (see: http://www.defenselink.mil/webmasters/policy/rumsfeld_memo_
to_DOD_webmasters.html). Regarding the availability of sensitive information on websites see: Knezo , “Sensitive But
Unclassified” Information and Other Controls: Policy and Options for Scientific and Technical Information, 2006, page 24 –available at: http://digital.library.unt.edu/govdocs/crs/permalink/meta-crs-8704:1.
57 See http://www.telegraph.co.uk, news from 13 January 2007.
58 Regarding the extent of transnational attacks in the most damaging cyber attacks see: Sofaer/Goodman , Cyber Crime andSecurity – The Transnational Dimension in Sofaer/Goodman, The Transnational Dimension of Cyber Crime and Terrorism,
2001, page 7 – available at: http://media.hoover.org/documents/0817999825_1.pdf.
59 The first defined and still most important communication protocols are: TCP (Transmission Control Protocol) and the IP(Internet Protocol). For further information see: Tanebaum , Computer Networks; Comer , Internetworking with TCP/IP –Principles, Protocols and Architecture.
60 See Huebner/Bem/Bem , Computer Forensics – Past, Present And Future, No.6 – available at: http://www.scm.uws.edu.
au/compsci/computerforensics/Publications/Computer_Forensics_Past_Present_Future.pdf; Regarding the possibilities of
network storage services see: Clark , Storage Virtualisation Technologies for Simplyfing Data Storage and Management.

9

RESOURCE MATERIAL SERIES No.79

investigation requires the co-operation of law enforcement agencies in all affected countries.61 Transnational
investigations without the consent of the competent authorities in the countries involved are difficult withregard to the principle of national sovereignty. This principle does in general not allow one country to carryout investigations within the territory of another country without a permission of the local authorities.62
Therefore the investigations need to be carried out with the support of the authorities of all countries
involved. With regard to the fact that in most cases there is only a very short time gap available, in which
successful investigations can take place, the application of the classic mutual legal assistance regimes turns
out to add to difficulties in Cybercrime investigations as mutual legal assistance in general requires time
consuming formal procedures. There are different legislative approach to speed up the investigation. One
example is the G8 24/7 Network another one the provisions related to international co-operation in theCouncil of Europe Convention on Cybercrime.

F. Independence of Place of Action and the Presence at the Crime Site
Committing a cybercrime does in general not require the presence of the perpetrator at the place wherethe victim is based. This independence of place of action and the location of the victim can add difficulties
in regard to cybercrime investigations. Offenders can try to avoid criminal proceedings by acting fromcountries with weak cybercrime legislation.63 An effective fight against cybercrime does therefore require
the prevention of “safe haven” that would enable the offenders to hide their activities.64 An example ofdifficulties resulting from safe havens was the “Love Bug” computer worm that was first discovered in
2000.65 The computer worm infected millions of computer systems worldwide.66 Intensive investigations led
to a suspect in the Philippines. Due to the fact that the development and spreading of malicious software wasat that time not sufficiently criminalized in the Philippines, the local investigation was seriously hindered.67
G. Resources
One of the main challenges for law enforcement agencies is the fact that a number of organized crimegroups have access to a significant number of computer systems that they can use to carry out automatedattacks.68 An example of the use of a large number of computer systems to carry out an attack was the
successful computer attack against government websites in Estonia.69 Analysis of the attacks point out, that
61 Regarding the need for international co-operation in the fight against Cybercrime see: Putnam/Elliott, International

Responses to Cyber Crime, in Sofaer/Goodman , The Transnational Dimension of Cyber Crime and Terrorism, 2001, page 35 etseqq. – available at: http://media.hoover.org/documents/0817999825_35.pdf; Sofaer/Goodman, Cyber Crime and Security – The
Transnational Dimension in Sofaer/Goodman , The Transnational Dimension of Cyber Crime and Terrorism, 2001, page 1 etseqq. – available at: http://media.hoover.org/documents/0817999825_1.pdf
62 National sovereignity is a fundamental principle in International Law. See Roth, State Sovereignity, International Legality,
and Moral Disagreement, 2005, page 1 – available at: http://www.law.uga.edu/intl/roth.pdf.
63 An example are offences related to phishing. Although most sites are stored in the US (32%), China (13%), Russia (7%)
and the Republic of Korea (6%) are following. Apart from the US none of them has yet signed and ratified Cybercrime specificinternational agreements that would enable and oblige them to effectively participate in international investigations.
64 The issue was addressed by a number of international organizations. The UN General Assembly Resolution 55/63 points
out: “States should ensure that their laws and practice eliminate safe havens for those who criminally misuse information
technologies”. The full text of the Resolution is available at: http://www.unodc.org/pdf/crime/a_res_55/res5563e.pdf. The G8
10 Point Action plan highlights: “There must be no safe havens for those who abuse information technologies”.
65 For more information see http://en.wikipedia.org/wiki/ILOVEYOU; regarding the effect of the worm on Critical
Infrastructure Protection see: Brock , “ILOVEYOU” Computer Virus Highlights Need for Improved Alert and Coordination
Capabilities, 2000 – available at: http://www.gao.gov/archive/2000/ai00181t.pdf.
66 BBC News, Police closes in on Love Bug culprit, 06.05.2000 – available at: http://news.bbc.co.uk/1/hi/sci/tech/738537.stm.
Regarding the technology used: http://radsoft.net/news/roundups/luv/20000504,00.html.
67 See for example: CNN, Love Bug virus raines spectre of cyberterrorism, 08.05.2000, http://edition.cnn.com/2000/LAW/05/08/
love.bug/index.html; Chawki , A Critical Look at the Regulation of Cybercrime, http://www.crime-research.org/articles/
Critical/2; Sofaer/Goodman , Cyber Crime and Security – The Transnational Dimension - in Sofaer/Goodman , The Transnational
Dimension of Cyber Crime and Terrorism, 2001, page 10 – available at: http://media.hoover.org/documents/0817999825_1.pdf;
68 See “Emerging Cybersecurity Issues Threaten Federal Information Systems”, GAO, 2005 – available at: http://www.gao.
gov/new.items/d05231.pdf.
69 Regarding the attacks see: Lewis, Cyber Attacks Explained, 2007 – available at: http://www.csis.org/media/csis/pubs/070615_
cyber_attacks.pdf; A cyber-riot, The Economist,10.05.2007 – available at: http://www.economist.com/world/europe/PrinterFriendly.
cfm?story_id=9163598; Digital Fears Emerge After Data Siege in Estonia, The New York Times, 29.05.2007 – available at: http://
www.nytimes.com/2007/05/29/technology/29estonia.html?ei=5070&en=2e77eb21a1ab42ac&ex=1188360000&pagewanted=print.

10

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

those attacks could have been committed by thousands of computers that were part of a so called “botnet”.70
Botnets is a term characterizing a group of compromised computers running programmes that are undercontrol of someone.71 In general the computer that became part of the botnet were previously infected withmalicious software that installed a tools that enables the perpetrator to take over the control. Those botnets
can for example be used to carry out a denial of service attack72 or operate file-sharing server.73

H. Means of Anonymous Communication
The Internet offers various possibilities for an offender to hide his identity. Using public Internet
terminals74 or an anonymous remailer75 are just two possibilities to make an identification of an offenderdifficult or even impossible. Another well-known way to hide identity is to use fake e-mail addresses.76
Many e-mail services can be used without the need to go through a formal registration process where theentered data are checked. If law enforcement agencies are trying to identify an offender that is using suche-mail address they are at least not able to solely base their investigation on the subscriber information.
III. THE PHENOMENON OF CYBERCRIME AND THE LEGAL RESPONSE
The following chapter will provide an overview about some of the most serious phenomena of cybercrime
and the legal response provided by the Convention on Cybercrime. Currently the Council of Europe
Convention on Cybercrime77 is, apart from the UN Resolution 55/63,78 the only complex international
legislative framework in the fight against Cybercrime. Forty five countries signed79 and 23 countries
ratified80 the Convention on Cybercrime, as of July 2008. With regard to the fact that is was initiated by
the Council of Europe, it is important to point out that the Convention is not limited to the Members of
the Council of Europe.81 The Convention on Cybercrime was from the beginning of its drafting designed
as an international Convention. Apart from the involvement of the non-members Canada, South-Africa,
Japan and the United States, who participated as observers, further non-member states have recently been
70 See: Toth , Estonia under cyber attack, http://www.cert.hu/dmdocuments/Estonia_attack2.pdf.

71 See: Ianelli/Hackworth , Botnets as a Vehicle for Online Crime, 2005, page 3 – available at: http://www.cert.org/archive/pdf/

Botnets.pdf;

72 Regarding the use of botnets in the attacks against computer systems in Estonia see: See: Toth , Estonia under cyber attack,http://www.cert.hu/dmdocuments/Estonia_attack2.pdf.
73 If the offender uses such botnets it is difficult to trace back and identify them as the first traces do only lead to the memberof the botnets.
74 Regarding legislative approaches to require an identification prior to the use of public terminals see Art. 7 of the Italian
Decree-Law No. 144.
75 See: Claessens/Preneel/Vandewalle , Solutions for Anonymous Communication on the Internet, 1999.
76 Regarding the possibilities of tracing an offender by using the e-mail header see: Al-Zarouni, Tracing E-mail Headers, 2004 –available at: http://scissec.scis.ecu.edu.au/publications/forensics04/Al-Zarouni.pdf.
77 Convention on Cybercrime, European Treaty Series - No. 18. The full text of the Convention 185 (Convention on
Cybercrime), the First Additional Protocol and the list of signatures and ratifications are available at: www.coe.int.
78 A/RES/55/63. The full text of the Resolution is available at: http://www.unodc.org/pdf/crime/a_res_55/res5563e.pdf (April 2006)
79 Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Malta, Moldova, Montenegro Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden,
Switzerland, The Former Yugoslav Republic of Macedonia, Ukraine, United Kingdom, Canada, Japan, South Africa, United States.
80 Albania, Armenia, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Finland, France, Hungary, Iceland,
Italy, Latvia, Lithuania, Netherlands, Norway, Romania, Slovakia, Slovenia, The Former Yugoslav Republic of Macedonia,
Ukraine, United States.
81 Article 37 – Accession to the Convention(1) After the entry into force of this Convention, the Committee of Ministers of the Council of Europe, after consulting withand obtaining the unanimous consent of the Contracting States to the Convention, may invite any State which is not a memberof the Council and which has not participated in its elaboration to accede to this Convention. The decision shall be taken by the
majority provided for in Article 20.d. of the Statute of the Council of Europe and by the unanimous vote of the representativesof the Contracting States entitled to sit on the Committee of Ministers.
(2) In respect of any State acceding to the Convention under paragraph 1 above, the Convention shall enter into force on
the first day of the month following the expiration of a period of three months after the date of deposit of the instrument ofaccession with the Secretary General of the Council of Europe.

11

RESOURCE MATERIAL SERIES No.79

invited to accede to the Convention.82 The Convention contains regulations that, due to the singular statusof the Convention, reflect international standards. The importance of the Convention and its relevanceas a potential global model law, setting standards for cybercrime legislation cannot be measured solely by
the number of signatures or ratifications. A significant number of countries have already made use of theConvention to update their national criminal law in accordance with international standards without formally
acceding to the Convention. Examples are Argentina,83 Pakistan,84 Philippines,85 Egypt,86 Botswana87 andNigeria,88 who have already drafted parts of their legislation in accordance with the Convention.

A. Illegal Access (“Hacking”)
1. Phenomenon
Ever since computer networks were developed, their ability to remotely access data on anothercomputer systems has been abused for criminal purposes. The term “hacking” is used to describe the actof unlawfully accessing to a computer system.89 Due to the fact that many famous computer systems, suchas the those of NASA, the Pentagon, Google and the Estonian and German Government, were successfully
attacked, hacking has become one of the most well known computer offences.90 It is one of the oldest
computer offences.91 The first acts of illegal access to a computer system were discovered shortly after the
introduction of network technology.92 But in addition to its long history, the offence has a great relevance inrecent times. Entering a computer system without right is very often the first act of combined acts such as
phishing93 and identity theft.94 The fact, that researches recorded more than 250 million hacking incidents
worldwide during the month of August 2007 underlines the relevance of the offence.95
Within the scope of recognized offences, the perpetrators’ motivations have been wide-ranging.96 They
82 Costa Rica, Mexico and the Philippines.

83 Draft Code of Criminal Procedure, written by the Advisory Committee on the Reform of Criminal Procedural Legislation,

set up by Decree No. 115 of the National Executive Power of 13 February 2007 (Boletín Oficial of 16 February 2007).

84 Draft Electronic Crime Act 2006

85 Draft Act Defining Cybercrime, providing for Prevention, Suppression and Imposition of Penalties therefor and for other

Purposes, House Bill No. 3777.

86 Draft Law of Regulating the protection of Electronic Data and Information And Combating Crimes of Information, 2006.
87 Draft Cybercrime and Computer related Crimes Bill 2007, Bill No. 17 of 2007.

88 Draft Computer Security and Critical Information Infrastructure Protection Bill 2005.

89 In the early years of IT development, the term “hacking” was used to describe the attempt to get more out of a system (softwareor hardware) than it was designed for. Within this context, the term “hacking” was often used to describe a constructive activity.

90 For an overview of victims of hacking attacks, see: http://en.wikipedia.org/wiki/Timeline_of_computer_security_hacker_

history; Joyner/Lotrionte, Information Warfare as International Coercion: Elements of a Legal Framework, EJIL 2002, No5– page 825 et sq.; Regarding the impact see Biegel , Beyond our Control? The Limits of our Legal System in the Age ofCyberspace, 2001, page 231 et. seq.
91 See Levy , Hackers, 1984; Hacking Offences, Australian Institute of Criminology, 2005 – available at: http://www.aic.gov.au/
publications/htcb/htcb005.pdf.; Taylor , Hacktivism: In Search of lost ethics? in Wall , Crime and the Internet, 2001, page 61.
92 With regard to the fact that most criminal law systems did not have such offences the acts could in most countries not be
prosecuted until the criminal law was amended.
93 The term “phishing” describes attempts to fraudulently acquire sensitive information (such as passwords) by masquerading asa trustworthy person or business (e.g. financial institution) in a seemingly official electronic communication. See the information
offered by anti-phishing working group – available at: www.antiphishing.org; Jakobsson , The Human Factor in Phishing – available
at: http://www.informatics.indiana.edu/markus/papers/aci.pdf; Gercke , CR 2005, 606; The term “phishing” describes an act that is
carried out to make the victim disclose personal/secret information. The term “phishing” originally described the use of emails to“phish” for passwords and financial data from a sea of Internet users. The use of “ph” linked to popular hacker naming conventions.
See Gercke , CR, 2005, 606; Ollmann , The Phishing Guide Understanding & Preventing Phishing Attacks – available at: http://www.
nextgenss.com/papers/NISR-WP-Phishing.pdf. For more information on the phenomenon of phishing see below: Chapter 2.8.d.
94 The term identity theft describes the criminal act of fraudulently obtaining and using another person’s identity. For more
information see: Gercke , Internet-related Identity Theft, 2007 – available at: http://www.coe.int/t/e/legal_affairs/legal_
co-operation/combating_economic_crime/3_Technical_cooperation/CYBER/567%20port%20id-d-identity%20theft%20
paper%2022%20nov%2007.pdf;
95 The Online-Community HackerWatch publishes reports about hacking attacks. Based on their sources, more than 250
million incidents were reported in the month of August 2007. Source: www.hackerwatch.org.
96 They are ranging from the simple proof that technical protection measures can be circumvented, to the intention ofobtaining data stored on the victimized computer.

12

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

range from political activism to purely fraudulent intentions. For the perpetrator, access to stored data via a
network offers the advantage that security measures at the physical location of the “target” computer, that
guard the system against physical access, do not need to be circumvented. In addition, perpetrators do noteven have to be present at the crime scene.
2. Legal Response
Taking into account the above mentioned relevance of the offence it might surprise that not all countries
criminalize illegal access to a computer system. One example for a country that did for a long time notcriminalize illegal access to a computer system is Germany. Until 2007, such acts were intentionally notcovered by the German Penal Code.97 A prosecution was therefore only possible if the offender committed
further acts such as the alteration of data.
Analysing the various national approaches to criminalizing illegal access shows a great degree ofinconsistence. Some countries, such as Romania, criminalize the mere illegal access to a computer system,98
while others limit the criminalization by requiring a circumvention of security measures, or harmful
intentions, or where data was obtained, modified or damaged during the act.99 Others do not criminalize
mere access, but only subsequent offences.100
The Convention on Cybercrime includes a provision on illegal access that protects the integrity of thecomputer systems by criminalizing unauthorized access to a computer system. The subject of protection is
the integrity of computer systems.101(i) Article 2 – Illegal access
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal
offences under its domestic law, when committed intentionally, the access to the whole or any partof a computer system without right. A Party may require that the offence be committed by infringing
security measures, with the intent of obtaining computer data or other dishonest intent, or in relation to acomputer system that is connected to another computer system.
The provision does not criminalize a specific method of gaining access to a computer system. To ensurethat not every development of new technology requires an amendment of the legislation the provision wasdrafted by used terms that are neutral with regard to the technology used. The provision requires that theoffender acts intentionally102 and “without right”.103
Within the implementation of the provision the member states have various possibilities to restrict theapplication of the provision. They can, for example, require that security measures are circumvented or thatthe offender acted with a special intent to obtain computer data.

97 See Gercke , Comparing the Convention and the current legislation in Germany, MMR 2004, 729.

98 See for example: Art. 42 Romanian Law No. 161/2003. A country profile that lists the Cybercrime related provisions in the

Romanian legislation is available on the Council of Europe website.

99 Opponents to the criminalization of mere illegal access refer to situations where no dangers were created by mere intrusion,or where the acts of “hacking” led to the detection of loopholes and weaknesses in the security of targeted computer
systems. This approach can not only be found in national legislation but was also recommended by the Council of Europe
Recommendation N° (89) 9.
100 An example for this is the German Criminal Code, which criminalized only the act of obtaining data (Section 202a). The
provision has recently been changed. The excerpt below was in power until 2007.
Section 202a - Data Espionage(1) Whoever, without authorization, obtains data for himself or another, which was not intended for him and was specially
protected against unauthorized access, shall be punished with imprisonment for not more than three years or a fine.
(2) Within the meaning of subsection (1), data shall only be those which stored or transmitted electronically or magnetically orotherwise in a not immediately perceivable manner.
101 Explanatory Report, No. 22.
102 Explanatory Report to the Council of Europe Convention on Cybercrime, No. 39.
103 The element “without right” is a common component in the substantive criminal law provisions of the Convention on
Cybercrime.

13

RESOURCE MATERIAL SERIES No.79

B. Illegal Interception
1. Phenomenon
During transmission processes in a communication network data transfer processes can be intercepted.
One example for such interception is the recording of communication in a wireless network. If for example
an offender succeeds in intercepting the communication between a computer system and a wirelessaccess point he can intercept all non-encrypted communication such as e-mails sent or received or
websites opened. While taking into account the increasing popularity of wireless access and the wirelessinterconnection of communication devices (e.g. linking mobile communication devices via Bluetooth) it isimportant to keep an eye on the related vulnerability of the technology with regard to illegal interception.104
2. Legal Response
The Convention on Cybercrime includes a provision that protects the integrity of non-public
transmission by criminalizing their unauthorized interception.105 By criminalizing the illegal interception
the Convention aims to equate the protection of electronic transfers with the protection of voice phone
conversations against illegal tapping.106(i) Article 3 – Illegal interception
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal
offences under its domestic law, when committed intentionally, the interception without right, made bytechnical means, of non-public transmissions of computer data to, from or within a computer system,
including electromagnetic emissions from a computer system carrying such computer data. A Party may
require that the offence be committed with dishonest intent, or in relation to a computer system that isconnected to another computer system.
The provision criminalizes the interception of non-public transmissions. It is neither applicable withregard to public transmissions nor with regard to acts of obtaining information transferred by non-technicalmeans.107 Based on the definition provided in the Explanatory Report to the Convention on Cybercrimea transmission is “non-public” if the nature of the transmission process is confidential.108 It is therefore
necessary to analyse the status of transmission processes. In general, individual communication (such as
sending out an e-mail or downloading information from a website) can be considered non-public. Similar tothe provision mentioned above, the acts must be committed intentionally and without right.

C. Data Interference
1. Phenomenon
With regard to the fact that today more and more information is stored in a digital format, themanipulation or destruction of such information can result in great damages. Unlike corporal objects, where
the ability to destroy the object in general requires physical access, computer data can in some cases be
destroyed without physical access to the storage devices. One example is the use of malicious software
such as computer viruses. Computer viruses are software tools that are - without permission - installed on
the victim’s computer in order to carry out operations such as the deletion of data.109 Like illegal access,data interference can be considered a traditional computer crime. The first computer viruses appeared in
104 Kang , “Wireless Network Security – Yet another hurdle in fighting Cybercrime” in Cybercrime & Security, IIA-2, page 6 etseqq.
105 Like Art. 2, Art. 3 enables the signatory states to adjust the extent of the criminalization within the implementation
process by requiring additional elements like “dishonest intent” or the relation to a computer system that is connected toanother computer system.
106 Explanatory Report No. 60.
107 Within this context only interceptions made by technical means are covered by the provision - Article 3 does not cover actsof “social engineering”.
108 Explanatory Report, No. 54.
109 See Spafford , “The Internet Worm Program: An Analysis”, page 3; Cohen , “Computer Viruses - Theory and Experiments”– available at: http://all.net/books/virus/index.html. Cohen , “Computer Viruses”; Adleman , “An Abstract Theory of Computer
Viruses”. Regarding the economic impact of computer viruses, see Cashell/Jackson/Jickling/Webel , “The Economic Impact ofCyber-Attacks”, page 12; Symantec “Internet Security Threat Report”, Trends for July-December 2006 – available at: http://
eval.symantec.com/mktginfo/enterprise/white_papers/ent-whitepaper_internet_security_threat_report_xi_03_2007.en-us.pdf

14

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

the 1970s.110 Since then, not only the number of computer viruses but also the damage they cause hasrisen significantly.111 The emerging use of networks enable the viruses to spread much quicker than inthose times, where the exchange of disks was the main way of distribution. One example is the “LoveBug” computer worm that was developed by a suspect in the Philippines in 2000112 and infected millions
of computers worldwide.113 The increasing speed of distribution influenced the damage caused by virus
attacks. In 2000 the financial loss caused by malicious software was estimated to an amount of up to 17
billion US$.114
2. Legal Response
In Article 4, the Convention on Cybercrime includes a provision that protects the integrity of data against
unauthorized interference.115 The aim of the provision is to fill the existing gap in some national penal
laws and to provide computer data and computer programmes with a protection similar to those enjoyed bycorporeal objects against the intentional infliction of damage.116(i) Article 4 – Data interference(1) Each Party shall adopt such legislative and other measures as may be necessary to establish
as criminal offences under its domestic law, when committed intentionally, the damaging, deletion,
deterioration, alteration or suppression of computer data without right.
(2) A Party may reserve the right to require that the conduct described in paragraph 1 result in serious
harm.
The provision not only criminalizes the damage and deletion of computer data, e.g. by computer virus.117
In addition to traditional manipulations the drafters of the Convention decided to include acts that can leadto similar damages. One example is the alteration of computer data. If a computer virus randomly changes
the content of a document the damage can be comparable to a deletion of the file. Similar to the provisions
mentioned above, the acts must be committed intentionally and without right.

D. System Interference
1. Phenomenon
Information technology has become an important element of business communication and operation. As
pointed out previously,118 the integration of computer technology in the everyday life reached a level thatthe information societies are depending on the availability of those services. The interruption of important
110 One of the first computer virus was called (c)Brain and was created by Basit and Amjad Farooq Alvi. For further details,

see: http://en.wikipedia.org/wiki/Computer_virus.
111 White/Kephart/Chess , Computer Viruses: A Global Perspective – available at: http://www.research.ibm.com/antivirus/
SciPapers/White/VB95/vb95.distrib.html.
112 For more information, see http://en.wikipedia.org/wiki/ILOVEYOU; regarding the effect of the worm on Critical
Information Infrastructure Protection, see: Brock , “ILOVEYOU” Computer Virus Highlights Need for Improved Alert andCoordination Capabilities, 2000, available at: http://www.gao.gov/archive/2000/ai00181t.pdf.
113 BBC News, “Police close in on Love Bug culprit”, 06.05.2000, available at: http://news.bbc.co.uk/1/hi/sci/tech/738537.stm.
Regarding the technology used, see: http://radsoft.net/news/roundups/luv/20000504,00.html.
114 Cashell/Jackson/Jickling/Webel , “The Economic Impact of Cyber-Attacks”, page 12 – available at: http://www.cisco.com/
warp/public/779/govtaffairs/images/CRS_Cyber_Attacks.pdf. The fact that the number of people using the Internet has
increased since then, but that the estimated losses have decreased, shows that the number of users of networks is only one
aspect that influences development.
115 Article 4 is offers the possibility of restricting criminalization by limiting it to cases where the actions result in serious
harm.
116 Explanatory Report, No. 60.
117 A computer virus is software that is able to replicate itself and infect a computer, without the permission of the user toharm the computer system. See Spafford , “The Internet Worm Program: An Analysis”, page 3; Cohen , “Computer Viruses- Theory and Experiments” – available at: http://all.net/books/virus/index.html. Cohen , “Computer Viruses”; Adleman , “AnAbstract Theory of Computer Viruses”. Regarding the economic impact of computer viruses, see Cashell/Jackson/Jickling/
Webel , “The Economic Impact of Cyber-Attacks”, page 12; Symantec “Internet Security Threat Report”, Trends for JulyDecember 2006 – available at: http://eval.symantec.com/mktginfo/enterprise/white_papers/ent-whitepaper_internet_security_
threat_report_xi_03_2007.en-us.pdf
118 See above: Chapter 1.

15

RESOURCE MATERIAL SERIES No.79

services can have a negative impact on the development of the society.119 If, for example, servers that are
responsible for providing communication services are not available, the users have to switch to alternativemeans of communication. The existence of alternative means of communication is very likely an essential
part of a Cyber-Security strategy of most global businesses but due to the cost of keeping redundant
systems available it is not likely that they are available to the majority of Internet users.120
Affecting the availability of services can take place in various ways. The impact of the damage to theundersea cable in 2008, which was very likely caused by anchoring ships, led to a dramatic decrease of thetransmission speed in the Asian Pacific region and shows the potential of accidents.121 But in addition toaccidental interruption there are various ways in which offenders can influence the availability of Internet
services. One possibility is the physical termination of critical infrastructure – e.g. the physical damage ofan Internet server. A way to hinder a computer system from operating without being present at the physicallocation of the server is the installation of a computer virus that deletes important files on the computer
system.122 But a successful attack with a computer virus requires the circumvention of protection measures.
With regard to fact that depending on the configuration of the protection system can have unique difficulties,
a third possibility of interfering with the functioning of a computer system has become very popular inrecent times. A number of famous web pages123 became victims of so-called “Denial-of-Service (DOS)attacks”.124 Within such attacks the offenders are targeting a computer system with more requests than thecomputer system can handle.125 Even powerful systems can be affected by these attacks.
119 This is especially relevant with regard to the trust of the users. If due to frequent unavailability of critical services theusers loose the trust in the reliability of the provider this can seriously influence it’s operations. Regarding the importance oftrust in e-commerce see: Ratnasingham , The importance of trust in electronic communication, Internet Research, 1998, Vol.
8, Issue 4, page 313 et. Seqq; Meech/Marsh , Social Factors in E-Commerce Personalization – available at: http://iit-iti.nrccnrc.gc.ca/iit-publications-iti/docs/NRC-43664.pdf; Shim/Van Slyke/Jiang/Johnson , Does Trust reduce concerns for information
privacy in e-commerce? – available at: http://sais.aisnet.org/2004/.%5CShim,%20VanSlyke,%20Jiang%20&%20Johnson.pdf.
120 As a consequence, the fact that a business provides a redundant system for communication does not necessary mean thatthe ability to communicate with it’s customers is not affected if the main communication system fails as the users might nothave the ability to switch means of communication.
121 Regarding the underwater cable damage see for example: US Department of Homeland Security, Daily Open Source
Infrastructure Report, 4 February 2008 – available at: http://www.globalsecurity.org/security/library/news/2008/02/dhs_
daily_report_2008-02-04.pdf; Hamblen, A third underwater cable is cut in Middle East, Computerworld, 1 February 2008 –available at: http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9060658; New cable cut
compounds net woes, BBC News, 4 February 2008 – available at: http://news.bbc.co.uk/2/hi/technology/7222536.stm.
122 A computer virus is software that is able to replicate itself and infect a computer, without the permission of the user to harmthe computer system. See Spafford , “The Internet Worm Program: An Analysis”, page 3; Cohen , “Computer Viruses - Theory andExperiments” – available at: http://all.net/books/virus/index.html. Cohen , “Computer Viruses”; Adleman , “An Abstract Theoryof Computer Viruses”. Regarding the economic impact of computer viruses, see Cashell/Jackson/Jickling/Webel , “The Economic
Impact of Cyber-Attacks”, page 12; Symantec “Internet Security Threat Report”, Trends for July-December 2006 – available at:
http://eval.symantec.com/mktginfo/enterprise/white_papers/ent-whitepaper_internet_security_threat_report_xi_03_2007.en-us.pdf
123 Power , 2000 CSI/FBI Computer Crime and Security Survey, Computer Security Journal , Vol. 16, No. 2, 2000, page 33 et.
seq; Lemos, Web attacks: FBI launches probe, ZDNEt News, 09.02.2000 – available at: http://news.zdnet.com/2100-9595_22501926.html;
124 In 2004 the web-services of the German Airline Lufthansa was affected by such a DOS-attack. As a result the use of theonline booking-service was not or only with delay available for the period of 2 hours.
125 A Denial-of-Service (DoS) attacks aims to make a computer system unavailable by saturating it with external
communications requests, so it cannot respond to legitimate traffic. For more information, see: US-CERT, “Understanding
Denial-of-Service Attacks”, available at: http://www.us-cert.gov/cas/tips/ST04-015.html; Paxson , “An Analysis of Using
Reflectors for Distributed Denial-of-Service Attacks”, available at: http://www.icir.org/vern/papers/reflectors.CCR.01/reflectors.
html; Schuba/Krsul/Kuhn/Spafford/Sundaram/Zamboni , “Analysis of a Denial of Service Attack on TCP”; Houle/Weaver , “Trends
in Denial of Service Attack Technology”, 2001, available at: http://www.cert.org/archive/pdf/DoS_trends.pdf.In 2000 a number ofwell known US e-commerce businesses were targeted by denial of service attacks. A full list of the attacks business is provided
by Yurcik , “Information Warfare Survivability: Is the Best Defense a Good Offence?”, page 4, available at: http://www.projects.
ncassr.org/hackback/ethics00.pdf.For more information see: Power , 2000 CSI/FBI Computer Crime and Security Survey,
Computer Security Journal , Vol. 16, No. 2, 2000, page 33 et. seq; Lemos , Web attacks: FBI launches probe, ZDNEt News,
09.02.2000 – available at: http://news.zdnet.com/2100-9595_22-501926.html; Goodman/Brenner , The Emerging Consensus
on Criminal Conduct in Cyberspace, page 20 – available at: http://www.lawtechjournal.com/articles/2002/03_020625_
goodmanbrenner.pdf; Paller , “Response, Recovery and Reducing Our Vulnerability to Cyber Attacks: Lessons Learned and16140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

2. Legal Response
In order protect the interest of operators and users to have appropriate access to telecommunication
technology the Convention on Cybercrime includes in Article 5 a provision that criminalizes the intentional
hindering of the lawful use of computer systems.

(i) Article 5 – System interference
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal
offences under its domestic law, when committed intentionally, the serious hindering without right of thefunctioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or
suppressing computer data.
The provision does not criminalize specific acts that lead to system interference but covers any activity
that interferes with the proper functioning of the computer system.126 This covers physical termination of aserver as well as computer viruses or a DoS attack. The fact that the provision limits the criminalization toserious attacks enables the signatory states to the Convention to limit the criminalization to attacks against
important services or attacks that caused significant damage.127 The act must be committed intentionallyand without right.

E. Misuse of Devices
1. Phenomenon
A serious issue concerning cybercrime is the availability of software and hardware tools designed tocommit crimes. Most of these devices are available on a large scale, the majority distributed for free. They
are easy to operate and can therefore even be run by users without any specific technical knowledge. Suchsoftware can be used for the interception of wireless communication or the identification of open wirelessnetworks (“Wardriving128”), the decryption of encrypted files or to run Denial of Service (DOS)129 attacks.
With regard to the fact, that the commission of these offences often requires the possession of tools, there
is a strong incentive to acquire them for criminal purposes, which could lead to the creation a kind of black
market for their production and distribution. Apart from the proliferation of “hacking devices”, the exchangeof passwords that enable the unauthorized user to access a computer system is taking place on a large scale.
2. Legal Response
Facing this development, the drafters of the Convention decided to establish an independent offence
criminalizing specific illegal acts regarding certain devices or access to data that can be misused for the purposesof committing offences against the confidentiality, integrity and availability of computer systems or data.130(i) Article 6 – Misuse of Devices(1) Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally and without right:

Implications for the Department of Homeland Security”, Statement to the United States House of Representatives
Subcommittee on Cybersecurity, Science, and Research & Development Select Committee on Homeland Security, 2003, page 3– available at: http://www.globalsecurity.org/security/library/congress/2003_h/06-25-03_cyberresponserecovery.pdf.
126 Explanatory Report, No. 66.
127 Although the connotation of “serious” does limit the applicability, it is likely that even serious delays of operations resulting
from attacks against a computer system can be covered by the provision.
128 Wardriving is a term used to characterize the search for wireless networks (WLAN / Wi-Fi) by moving vehicles. As longas the search for wireless networks does not go along with the misuse of the networks the legality of this action is in mostcountries not clearly defined. Regarding the situation in Germany see Baer, Wardriver, MMR 2005, 434.
129 A Denial-of-Service (DoS) attacks aims to make a computer system unavailable by saturating it with external communications
requests, so it cannot respond to legitimate traffic. For more information, see: US-CERT, “Understanding Denial-of-Service
Attacks”, available at: http://www.us-cert.gov/cas/tips/ST04-015.html; Paxson , “An Analysis of Using Reflectors for Distributed
Denial-of-Service Attacks”, available at: http://www.icir.org/vern/papers/reflectors.CCR.01/reflectors.html;
130 Due to the controversial discussion on the need for criminalization of the possession of the devices, the Convention is – inaddition to Paragraph 1 b) Sentence 2 - offering the option of a complex reservation in Article 6 Paragraph 3. If a Party makes
use of this reservation it can exclude the criminalization for the possession of tools and a number of illegal actions underParagraph 1) a) – e.g. the production of such devices.

17

RESOURCE MATERIAL SERIES No.79(a) the production, sale, procurement for use, import, distribution or otherwise making available of:
(i)
(ii)
		

a device, including a computer program, designed or adapted primarily for the purpose ofcommitting any of the offences established in accordance with the above Articles 2 through 5;
a computer password, access code, or similar data by which the whole or any part of acomputer system is capable of being accessed,with intent that it be used for the purpose of committing any of the offences established in
Articles 2 through 5; and(b) the possession of an item referred to in paragraphs a) i or ii above, with intent that it be used forthe purpose of committing any of the offences established in Articles 2 through 5. A Party may require by
law that a number of such items be possessed before criminal liability attaches.
(2) This article shall not be interpreted as imposing criminal liability where the production, sale, procurement
for use, import, distribution or otherwise making available or possession referred to in paragraph 1 of thisarticle is not for the purpose of committing an offence established in accordance with Articles 2 through 5 ofthis Convention, such as for the authorized testing or protection of a computer system.
(3) Each Party may reserve the right not to apply paragraph 1 of this article, provided that thereservation does not concern the sale, distribution or otherwise making available of the items referred toin paragraph 1 a.ii of this article.
The threat of these devices makes it difficult to focus the criminalization on the use of these tools tocommit crimes only. Most of the national criminal law systems do, in addition to the “attempt of an offence”,
have some provision criminalizing acts of preparation of crimes. In general this criminalization – which goesalong with an extensive forward displacement of criminal liability – is limited to the most serious crimes.
Especially in EU legislation, there are tendencies to extend the criminalization to preparatory acts to lessgrave offences.131
The connection factor of criminalization as established by Paragraph 1 (a) are on the one hand devices132
designed to commit cybercrimes and on the other hand passwords that enable access to a computer system.
With regard to these items, the Convention criminalizes a wide range of actions. In addition to production,
it sanctions the sale, procurement for use, import, distribution or otherwise making available of the devices
and passwords. A similar approach (but limited to devices designed to circumvent technical measures) can
be found in EU legislation regarding the harmonization of copyrights.133

F. Computer-Related Forgery
1. Phenomenon
Due to the shift from classic tangible documents to electronic documents the forgery of computer-related
data is playing an increasing role. The offence has especially become very popular with regard to “phishing”
131 An example is the EU Framwork Decision ABl. EG Nr. L 149, 2.6.2001.

132 With it’s definition of “distributing” in the Explanatory Report (‘Distribution’ refers to the active act of forwarding data

to others – Explanatory Report No. 72) the drafters of the Convention indicate a restriction of devices to software. Although
the Explanatory Report is not certain in this matter it is likely that not only software devices are covered by the provision but
hardware tools as well.
133 Directive 2001/29/EC Of The European Parliament And Of The Council of 22 May 2001 on the harmonization of certain
aspects of copyright and related rights in the information society:
Article 6 – Obligations as to technological measures
1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which
the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental,
advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision ofservices which:(a) are promoted, advertised or marketed for the purpose of circumvention of, or(b) have only a limited commercially significant purpose or use other than to circumvent, or(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any
effective technological measures.

18

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

attacks.134 The term “phishing” is used to describe a type of crime that is characterized by attempts to
fraudulently acquire sensitive information, such as passwords, by masquerading as a trustworthy person
or business (e.g. financial institution) in an apparently official electronic communication.135 Most of thesephishing attempts are operated via e-mail. The person receiving such e-mail is for example ordered to verify
his online bank account (“Click here to verify your account”) and by entering his or her account number andpassword on a webpage that was set up by the offenders, the offenders get access to the data.
2. Legal Response
The criminalization of the forgery of tangible items has a long legal tradition in most countries.136 The
Convention aims to create a parallel offence to the forgery of tangible documents in order to fill gaps incriminal law related to traditional forgery, which require visual readability of statements or declarations
embodied in a document and therefore do not apply to electronically stored data.137(i) Article 7 – Computer-Related forgery
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal
offences under its domestic law, when committed intentionally and without right, the input, alteration,
deletion, or suppression of computer data, resulting in inauthentic data with the intent that it beconsidered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is
directly readable and intelligible. A Party may require an intent to defraud, or similar dishonest intent,
before criminal liability attaches.
The target of a computer-related forgery is only data – not depending on whether they are directly
readable and intelligible. To draw the line on the forgery of tangible documents Article 7 requires – at least
with regard to the mental element - that the data is the equivalent of a public or private document. This
includes the need for legal relevance. The forgery of data that cannot be used for legal purposes is therefore
not covered by the provision.
134 See for example: Austria , Forgery in Cyberspace: The Spoof could be on you, University of Pittsburgh School of Law,

Journal of Technology Law and Policy, Vol. IV, 2004 – available at: http://tlp.law.pitt.edu/articles/Vol5-Austria.pdf.
135 Regarding the phenomenon of phishing, see. Dhamija/Tygar/Hearst , “Why Phishing Works”, available at: http://people.seas.
harvard.edu/~rachna/papers/why_phishing_works.pdf; “Report on Phishing”, A Report to the Minister of Public Safety andEmergency Preparedness Canada and the Attorney General of the United States, 2006, available at: http://www.usdoj.gov/opa/
report_on_phishing.pdf
136 See for example 18 U.S.C. § 495:
Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or otherwriting, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or
receive from the United States or any officers or agents thereof, any sum of money; or Whoever utters or publishes as true
any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false,
altered, forged, or counterfeited; orWhoever transmits to, or presents at any office or officer of the United States, any such writing in support of, or in relation to,
any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited –Shall be fined under this title or imprisoned not more than ten years, or both.
A similar approach can be found in Sec. 267 German Penal Code:
Section 267 Falsification of Documents(1) Whoever, for the purpose of deception in legal relations, produces a counterfeit document, falsifies a genuine document oruses a counterfeit or a falsified document, shall be punished with imprisonment for not more than five years or a fine.
(2) An attempt shall be punishable.
(3) In especially serious cases the punishment shall be imprisonment from six months to ten years. An especially serious
cases exists, as a rule, if the perpetrator:
1. acts professionally or as a member of a gang which has combined for the continued commission of fraud or falsification of
documents;
2. causes an asset loss of great magnitude;
3. substantially endangers the security of legal relations through a large number of counterfeit or falsified documents; or
4. abuses his powers or his position as a public official.
(4) Whoever commits the falsification of documents professionally as a member of a gang which has combined for thecontinued commission of crimes under Sections 263 to 264 or 267 to 269, shall be punished with imprisonment from one year
to ten years, in less serious cases with imprisonment from six months to five years.
137 Explanatory Report, No. 81.

19

RESOURCE MATERIAL SERIES No.79

G. Computer-Related Fraud
1. Phenomenon
Fraud remains one of the most popular crimes in cyberspace. Especially the success of online shoppingand Internet auctions increased the opportunities of offenders. The most popular crimes are credit cardfraud and auction fraud.138 Apart from that, the development of assets administered in computer systems(electronic funds, deposit money, e-gold) has become the target of manipulations. To avoid these criminal
acts, especially with regard to Internet auctions, a number of confidence-building measures have beentaken on the technical side.139 But the missing personal contact between the seller and customer limits thepossibilities of self-protection.
As fraud is a common problem outside the Internet as well, most national laws contain provisions
criminalizing such offences. The application of those provisions to Internet-related cases can be difficult
if the traditional national criminal law provisions relate to a falsity of a person.140 In many cases of fraudcommitted on the Internet the offender is manipulating a computer system. If the traditional provisions thatcriminalize fraud do not apply to computer-systems an update of the national law is necessary.
2. Legal Response
The Convention is aiming to criminalize any undue manipulation in the course of data processing with
the intention to effect an illegal transfer of property by providing an Article regarding computer-related
fraud.141(i) Article 8 – Computer-Related fraud
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal
offences under its domestic law, when committed intentionally and without right, the causing of a loss ofproperty to another person by:a. any input, alteration, deletion or suppression of computer data;b. any interference with the functioning of a computer system,with fraudulent or dishonest intent of procuring, without right, an economic benefit for oneself or for
another person.
Article 8 combines the most relevant acts with regard to computer-related fraud (input, alteration,
deletion and suppression) with the general act “interference with the functioning of a computer system” inorder to open the provision for further developments.142
In most national criminal law systems the fraud must lead to an economic loss. In addition to a generalintent with regard to the elements of crime (especially the manipulation) Art. 8 therefore requires a special
fraudulent or other dishonest intent to gain an economic or other benefit for oneself or another. As an
example of acts excluded from criminal liability because of a missing special intent the Explanatory Reportmentions commercial practices with respect to market competition that may cause an economic detriment toa person and a benefit to another, but are not carried out with fraudulent or dishonest intent.143
138 “Law Enforcement Efforts to combat Internet Auction Fraud”, Federal Trade Commission, 2000, page 1, available at: http://

www.ftc.gov/bcp/reports/int-auction.pdf; Beales , Efforts to Fight Fraud on the Internet, Statement before the Senate Special
Committee on aging, 2004, page 7 – available at: http://www.ftc.gov/os/2004/03/bealsfraudtest.pdf.
139 An example for this is the service offered by PAYPAL: PAYPAL is an internet business that enables the user to transfer
money, avoiding traditional paper methods such as money orders. It also performs payment processing for auction sites.
140 An example of this is Section 263 of the German Penal Code that requires the falsity of a person (mistake). The provision
does therefore not cover the majority of computer-related fraud cases:
Section 263 Fraud(1) Whoever, with the intent of obtaining for himself or a third person an unlawful material benefit, damages the assets ofanother, by provoking or affirming a mistake by pretending that false facts exist or by distorting or suppressing true facts, shallbe punished with imprisonment for not more than five years or a fine.
141 Explanatory Report, No. 86.
142 As a result not only data related offences but also hardware manipulations are covered by the provision.
143 The drafters of the Convention point out that these acts are not meant to be included in the offence established by Article
8. Explanatory Report, No. 90.

20

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

H. Child Pornography
1. Phenomenon
During the last years the Internet has become the primary instrument for trading child pornography.144
There are two main reasons for this development:•

The Internet offers unique possibilities with regard to the dissemination of content. By making a fileavailable in a file-sharing system it can be downloaded by millions of users worldwide. This increases
the number of potential consumers compared to traditional ways of distribution.

•

A second reason for the success of web pages with pornographic material is the fact that users are
considering themselves to be less “visible” while gaining access to the material online comparedto accessing a regular shop. This is an advantage for investigation as most users do not even know
about the traces they leave while surfing in the Internet.145

2. Legal Response
In order to improve the protection of children against sexual exploitation by modernizing criminal law
provisions, the Convention provides an Article dealing with child pornography.

(i) Article 9 – Offences related to child pornography(1) Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally and without right, the following
conduct:a) producing child pornography for the purpose of its distribution through a computer system;b) offering or making available child pornography through a computer system;c) distributing or transmitting child pornography through a computer system;d) procuring child pornography through a computer system for oneself or for another person;e) possessing child pornography in a computer system or on a computer-data storage medium.
(2) For the purpose of paragraph 1 above, the term “child pornography” shall include pornographic
material that visually depicts:a) a minor engaged in sexually explicit conduct;b) a person appearing to be a minor engaged in sexually explicit conduct;c) realistic images representing a minor engaged in sexually explicit conduct.
(3) For the purpose of paragraph 2 above, the term “minor” shall include all persons under 18 years ofage. A Party may, however, require a lower age-limit, which shall be not less than 16 years.
(4) Each Party may reserve the right not to apply, in whole or in part, paragraphs 1, sub-paragraphs d. ande, and 2, sub-paragraphs b. and c.
It is important to point out two controversial discussed elements of the offence established by Article 9:
The criminalization of the possession of child pornography and the integration of fictional images.
Within its approach to improve the protection of minors against sexual exploitation the Council of Europe
introduced a new Convention in 2007.146 On the first day the Convention was opened for signature 23
states signed the Convention.147 One of the key aims of the Convention is the harmonization of criminal
144 Krone , A Typology of Online Child Pornography Offending, Trends & Issues in Crime and Criminal Justice, No. 279.

145 Regarding the possibilities to trace back offenders of computer-related crimes see: Lipson , Tracking and Tracing Cyber-

Attacks: Technical Challenges and Global Policy Issues.
146 Council of Europe - Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual
Abuse (CETS No. 201).
147 Austria, Belgium, Bulgaria, Croatia, Cyprus, Finland, France, Germany, Greece, Ireland, Lithuania, Moldova, Netherlands,
Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovenia, Sweden, the Former Yugoslav Republic of Macedonia, andTurkey. Denmark, Iceland, Italy, Ukraine and the United Kingdom followed (July 2008).

21

RESOURCE MATERIAL SERIES No.79

law provisions that aim to protect children from sexual exploitation.148 To achieve this aim the Convention
contains a set of criminal law provisions. Apart from the criminalization of the sexual abuse of children (Art.
18) the Convention contains provisions dealing with the exchange of child pornography (Art. 20) and thesolicitation of children for sexual purposes (Art. 23).

(ii) Article 20 – Offences concerning child pornography(1) Each Party shall take the necessary legislative or other measures to ensure that the following
intentional conduct, when committed without right, is criminalized:a) producing child pornography;b) offering or making available child pornography;c) distributing or transmitting child pornography;d) procuring child pornography for oneself or for another person;e) possessing child pornography;f) knowingly obtaining access, through information and communication technologies, to childpornography.
(2) For the purpose of the present article, the term “child pornography” shall mean any material thatvisually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child’s
sexual organs for primarily sexual purposes.
(3) Each Party may reserve the right not to apply, in whole or in part, paragraph 1.a and e tothe production and possession of pornographic material: – consisting exclusively of simulated
representations or realistic images of a non-existent child; – involving children who have reached the age
set in application of Article 18, paragraph 2, where these images are produced and possessed by themwith their consent and solely for their own private use.
(4) Each Party may reserve the right not to apply, in whole or in part, paragraph 1.f.
(iii) Article 23 – Solicitation of children for sexual purposes
Each Party shall take the necessary legislative or other measures to criminalize the intentional proposal,
through information and communication technologies, of an adult to meet a child who has not reached
the age set in application of Article 18, paragraph 2, for the purpose of committing any of the offences
established in accordance with Article 18, paragraph 1.a, or Article 20, paragraph 1.a, against him or her,
where this proposal has been followed by material acts leading to such a meeting.
Art. 20 of the Convention on the protection of children is to a large degree comparable to Art. 9 of
the Convention on Cybercrime. The first main difference is the fact that the Convention on Cybercrime
focuses on the criminalization of acts related to information and communication services (“producing childpornography for the purpose of its distribution through a computer system”) while the Convention on theProtection of Children follows a broader approach (“producing child pornography“) and even covers actsthat are not related to computer networks. In addition Art. 20 (1) f) of the Convention on the Protection ofChildren criminalizes the act of obtaining access to child pornography.149 The Convention on Cybercrime
does not contain such a provision.
Art. 23 Convention on the protection of children criminalizes the solicitation of children for sexual
purposes by means of information and communication technology. The Convention on Cybercrime does notcontain such a provision.

I. Copyright Crimes
1. Phenomenon
The switch from analogue to a digital distribution of music and videos led to new forms of copyright
148 For more details see Gercke , ZUM 2008, 550ff.

149 The provision is especially relevant in those cases where the offender is accessing information in a computer network

without downloading it. In those cases the access to the information is – depending on the configuration of the computer
system and the services used - not in accordance with a possession of the information.

22

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

violations. Millions of copyright protected songs and movies are exchanged in file-sharing systems every
day.150 Some movies even appeared in file-sharing systems before their world premiere in cinema.151
The entertainment industry responded by implementing technical measures (DRM) to prevent
reproduction,152 but until now these measures have always been circumvented shortly after their introduction.
A number of software tools are available that enable the user to copy music CD’s and movie DVD’s that areprotected by DRM-systems. In addition, the Internet offers the possibility to distribute the copies worldwide.
As a result, the infringements of intellectual property rights are among the most commonly committed
offences on the Internet.
2. Legal Response
The Convention contains a provision that aims to harmonize the various approaches to criminalize
copyright violations in the national laws of the signatory states.

Article 10 – Offences related to infringements of copyright and related rights(1) Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law the infringement of copyright, as defined under the law of that
Party, pursuant to the obligations it has undertaken under the Paris Act of 24 July 1971 revising the Bern
Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspectsof Intellectual Property Rights and the WIPO Copyright Treaty, with the exception of any moral rights
conferred by such conventions, where such acts are committed wilfully, on a commercial scale and bymeans of a computer system.
(2) Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law the infringement of related rights, as defined under the lawof that Party, pursuant to the obligations it has undertaken under the International Convention for theProtection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention),
the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Performancesand Phonograms Treaty, with the exception of any moral rights conferred by such conventions, wheresuch acts are committed wilfully, on a commercial scale and by means of a computer system.
(3) A Party may reserve the right not to impose criminal liability under paragraphs 1 and 2 of this article
in limited circumstances, provided that other effective remedies are available and that such reservation
does not derogate from the Party’s international obligations set forth in the international instruments
referred to in paragraphs 1 and 2 of this article.
One of the main differences between Art. 10 Convention on Cybercrime and most national approaches isthe fact that Art. 10 does not explicitly name those acts that are supposed to be criminalized, but refers to anumber of international agreements – such as the WIPO Copyright treaty. This led to criticism from thosecountries that are not members of WIPO.153
The criminalization154 of copyright crimes established by Art. 10 Convention on Cybercrime is limited toserious cases and therefore excludes minor violations of copyrights.155 In addition the Convention does only cover
150 The latest analysis regarding file-sharing activities in Germany identify up to 7.3 million users who download music files
from the Internet. Up to 80% of these downloads are related to file-sharing systems. Source: GfK, Brennerstudie 2005.
151 An example is the movie “Star Wars – Episode 3”, that appeared in file-sharing systems hours before the official premiere.
See: http://www.heise.de/newsticker/meldung/59762 that is taking regard to a MPAA press release.
152 The technology that is used is called Digital Rights Management – DRM. The term Digital rights management (DRM) is
used to describe several technologies used to enforce pre-defined policies controlling access to software, music, movies, orother digital data. One of the key functions is the copy protection that aims to control or restrict the use and access to digital
media content on electronic devices with such technologies installed.
153 In this context it is important to highlight that the signature of the Convention does not oblige the states to become membersof the WIPO. It is sufficient to implement criminalization for those violations mentioned in Art. 10 Convention on Cybercrime.
154 Paragraph 3 enables the parties to make a reservation and not criminalize copyright violations as long as they provide that
other effective remedies are available and the reservation does not derogate from the parties’ international obligations.
155 The Convention is designed to set minimum standards for Internet-related offences. Therefore parties can go beyond thethreshold of “commercial scale” in the criminalization of copyright violations.

23

RESOURCE MATERIAL SERIES No.79

acts that are committed by the means of a computer system. Copyright violations that do not involve information
technology are not covered by the provision. Another major limitation of the criminalization is granted by therequirement of a violation on a commercial scale. A similar restriction is contained in the TRIPS Agreement,
which requires criminal sanctions only in the case of “piracy on a commercial scale”. As most of the copyrightviolations in file-sharing systems are not committed on a commercial scale they are not covered by Article 10.

IV. PROCEDURAL INSTRUMENTS CONTAINED IN THE CONVENTION ON CYBERCRIME
As pointed out previously, cybercrime investigations involve a number of unique challenges, such as thehigh speed of data exchange processes. To be able to react to the challenges, law enforcement agencies needprocedural instruments that enable them to take those measures that are necessary to identify the offenderand collect the evidence required for criminal proceedings.156 With regard to the special challenges related
to cybercrime investigation the traditional investigation instruments, such as search and seizure, will not be
sufficient to carry out successful investigations. The Convention on Cybercrime therefore contains a set of
special instruments.

A. Expedited Preservation of Data
1. The Situation
The identification of a cybercrime offender very often requires the analysis of traffic data.157 In particular,
the IP address used by the offender while committing the offence is an important information that can help
to trace him or her back. One of the main challenges for investigation is the fact that traffic data that are
relevant for the identification are often deleted automatically within a rather short period of time.158 Somecountries have strict laws that prohibit the storage of certain traffic data after the end of a process. One
example for such restriction is Art. 6 EU Directive on Privacy and Electronic Communication.159
2. The Related Procedural Instrument
Art. 16 Convention on Cybercrime enables the law enforcement agencies to order the preservation of
traffic as well as content data (“quick freeze”).

Article 16 – Expedited preservation of stored computer data
(1) Each Party shall adopt such legislative and other measures as may be necessary to enable its
competent authorities to order or similarly obtain the expeditious preservation of specified computer
data, including traffic data, that has been stored by means of a computer system, in particular where there
are grounds to believe that the computer data is particularly vulnerable to loss or modification.
(2) Where a Party gives effect to paragraph 1 above by means of an order to a person to preserve specified
156 Regarding user-based approaches in the fight against Cybercrime see: Goerling , The Myth Of User Education, 2006 - www.

parasite-economy.com/texts/StefanGorlingVB2006.pdf. See as well the comment made by Jean-Pieree Chevenement , French
Minister of Interior, at the G8 Conference in Paris in 2000: “More broadly, we have to educate users. They must all understandwhat they can and can’t do on the Internet and be warned of the potential dangers. As use of the Internet grows, we’ll naturally
have to step up our efforts in this respect.”157 “Determining the source or destination of these past communications can assist in identifying the identity of the perpetrators.
In order to trace these communications so as to determine their source or destination, traffic data regarding these pastcommunications is required”, See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 155.; Regarding
the identification of suspects by IP-based investigations see: Gercke , Preservation of User Data, DUD 2002, 577 et. seqq.
158 The reason for this automated deletion process is the fact that after the end of a process (e.g. sending out an e-mail,accessing the Internet or downloading a movie) those traffic data that have been generated during the process and that
ensure that the process could be carried out are not anymore needed and the storage of the data would increase the cost ofoperating the service. The cost issue was especially raised within the discussion about data retention legislation in the EU.
See for example: E-communications service providers remain seriously concerned with the agreement reached by EU Justice
Ministers to store records of every e-mail, phone call, fax and text message, Euroispa press release, 2005 – available at: http://
www.ispai.ie/EUROISPADR.pdf; See as well: ABA International Guide to Combating Cybercrime, page 59.
159 Directive 2002/58/EC of the European Parliament and of The Council of 12 July 2002 concerning the processingof personal data and the protection of privacy in the electronic communications sector (Directive on privacy andelectronic communications). The document is available at: http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_201/
l_20120020731en00370047.pdf.

24

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

stored computer data in the person’s possession or control, the Party shall adopt such legislative and othermeasures as may be necessary to oblige that person to preserve and maintain the integrity of that computer
data for a period of time as long as necessary, up to a maximum of ninety days, to enable the competentauthorities to seek its disclosure. A Party may provide for such an order to be subsequently renewed.
(3) Each Party shall adopt such legislative and other measures as may be necessary to oblige thecustodian or other person who is to preserve the computer data to keep confidential the undertaking ofsuch procedures for the period of time provided for by its domestic law.
(4) The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
This instrument should enable the law enforcement agencies to react immediately after becoming awareof an offence and avoid the risk of a deletion as a result of long lasting procedures.160 After receiving suchorder the providers are obliged to preserve those data that were processed during the operation of theservice.161 Art. 16 does not include an obligation of an Internet Service Provider to transfer the relevant
data to the authorities. The transfer obligation is regulated in Art. 17 and 18 Convention on Cybercrime.
In this context it is important to highlight that Art. 16 does not contain a data retention obligation. A
data retention obligation forces the provider of Internet services to save all traffic data for a certain periodof time.162 This would enable the authorized agencies to gain access to data that is necessary to identify an
offender even month after the perpetration.163 A data retention obligation was recently adopted by the EU
Parliament164 and is currently discussed in the US.165

B. Production Order
1. The Situation
As mentioned above Art. 16 does only oblige the provider to save those data that were processed by theprovider and not deleted at the time the provider receives the order.166 The provision does not oblige theprovider to transfer the relevant data to the authorities.
2. The Related Procedural Instrument
The transfer obligation is regulated in Art. 18 Convention on Cybercrime.

Article 18 – Production order(1) Each Party shall adopt such legislative and other measures as may be necessary to empower its
160 However, it is recommended that States consider the establishment of powers and procedures to actually order therecipient of the order to preserve the data, as quick action by this person can result in the more expeditious implementation of
the preservation measures in particular cases. Explanatory Report to the Convention on Cybercrime, No. 160.
161 ‘Preservation’ requires that data, which already exists in a stored form, be protected from anything that would cause its
current quality or condition to change or deteriorate. Explanatory Report to the Convention on Cybercrime, No. 159.
162 Regarding The Data Retention Directive in the EU see Bignami , Privacy and Law Enforcement in the European Union:
The Data Retention Directive, Chicago Journal of International Law, 2007, Vol. 8, No.1 – available at: http://eprints.law.duke.
edu/archive/00001602/01/8_Chi._J.__Int’l_L._233_(2007).pdf; Breyer , Telecommunications Data Retention and Human Rights:
The Compatibility of Blanket Traffic Data Retention with the ECHR, European Law Journal, 2005, page 365 et. seqq.
163 See: Preface 11. of the EU Data Retention Directive: “Given the importance of traffic and location data for theinvestigation, detection, and prosecution of criminal offences, as demonstrated by research and the practical experience ofseveral Member States, there is a need to ensure at European level that data that are generated or processed, in the courseof the supply of communications services, by providers of publicly available electronic communications services or of a public
communications network are retained for a certain period, subject to the conditions provided for in this Directive.”
164 Directive 2002/58/EC of the European Parliament and of The Council of 12 July 2002 concerning the processing of personal
data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
The document is available at: http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_201/l_20120020731en00370047.pdf.
165 See for example: Draft Bill to amend title 18, United States Code, to protect youth from exploitation by adults using theInternet, and for other purposes - Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act (SAFETY) of
2007 – available at: http://www.govtrack.us/congress/bill.xpd?bill=h110-837. Regarding the current situation in the US see:
ABA International Guide to Combating Cybercrime, page 59.
166 ‘Preservation’ requires that data, which already exists in a stored form, be protected from anything that would cause its
current quality or condition to change or deteriorate. Explanatory Report to the Convention on Cybercrime, No. 159.

25

RESOURCE MATERIAL SERIES No.79

competent authorities to order:a) a person in its territory to submit specified computer data in that person’s possession or control,
which is stored in a computer system or a computer-data storage medium; andb) a service provider offering its services in the territory of the Party to submit subscriber
information relating to such services in that service provider’s possession or control.
(2) The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
(3) For the purpose of this article, the term “subscriber information” means any information contained in
the form of computer data or any other form that is held by a service provider, relating to subscribers of
its services other than traffic or content data and by which can be established:a) the type of communication service used, the technical provisions taken thereto and the period ofservice;b) the subscriber’s identity, postal or geographic address, telephone and other access number, billingand payment information, available on the basis of the service agreement or arrangement;c) any other information on the site of the installation of communication equipment, available on thebasis of the service agreement or arrangement.
Art. 18 of the Convention on Cybercrime is not only applicable after a preservation order is issued: theprovision is a general instrument that law enforcement agencies can make use of. If the Internet Service
Providers are voluntarily transferring the requested data law enforcement agencies are not limited to seizing
hardware but can make use of the less intensive production order.

C. Partial Disclosure of Traffic Data
1. The Situation
As pointed out previously, the Convention strictly divides between the obligation to preserve data on
request and the obligation to disclose them to the competent authorities.167
2. The Related Procedural Instrument
Art. 17 combines the obligation to ensure the preservation of traffic data in cases where a number ofservice providers were involved with the additional obligation to disclose the necessary information in orderto enable the LEAs to identify the path through.

Article 17 – Expedited preservation and partial disclosure of traffic data
(1) Each Party shall adopt, in respect of traffic data that is to be preserved under Article 16, such
legislative and other measures as may be necessary to:a) ensure that such expeditious preservation of traffic data is available regardless of whether one ormore service providers were involved in the transmission of that communication; andb) ensure the expeditious disclosure to the Party’s competent authority, or a person designatedby that authority, of a sufficient amount of traffic data to enable the Party to identify the service
providers and the path through which the communication was transmitted.
(2) The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Without such partial disclosure law enforcement agencies would in some cases not be able to trace backthe offender and preserve more relevant data when more than one provider was involved in a data exchange
process.168

167 Gercke , The Convention on Cybercrime, MMR 2004, 802.

168 “Often, however, no single service provider possesses enough of the crucial traffic data to be able to determine the actual

source or destination of the communication. Each possesses one part of the puzzle, and each of these parts needs to be
examined in order to identify the source or destination.” See Explanatory Report to the Convention on Cybercrime, No. 167.

26

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

D. Submission of Subscriber Information
1. The Situation
The main aim of most cybercrime investigations is the identification of the suspects involved incommitting the offences. Therefore the individualization of the suspect is a major aim of the procedural
instruments. Such identification can be achieved with the help of subscriber information. The use of manyInternet services, such as the access to the Internet or the rental of server storage require registration. The
subscriber information submitted during the registration process can enable the individualization process.
2. The Related Procedural Instrument
In addition to the obligation to submit computer data, Art. 18 CoC enables law enforcement agencies toorder the submission of subscriber information.

Article 18 – Production order(1) Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to order:a) a person in its territory to submit specified computer data in that person’s possession or control,
which is stored in a computer system or a computer-data storage medium; andb) a service provider offering its services in the territory of the Party to submit subscriber
information relating to such services in that service provider’s possession or control.
(2) The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
(3) For the purpose of this article, the term “subscriber information” means any information contained in
the form of computer data or any other form that is held by a service provider, relating to subscribers of
its services other than traffic or content data and by which can be established:a) the type of communication service used, the technical provisions taken thereto and the period ofservice;b) the subscriber’s identity, postal or geographic address, telephone and other access number, billingand payment information, available on the basis of the service agreement or arrangement;c) any other information on the site of the installation of communication equipment, available on thebasis of the service agreement or arrangement.
This investigation instrument is of great importance in IP-based investigations. If the law enforcement
agencies are able to identify an IP-address that was used by the offender while carrying out the offence
they will need to identify the person169 who used the IP-address at the time of the offence. Based on Art.
18 Subsection 1 b) Convention on Cybercrime a provider is obliged to submit those subscriber information
listed in Art. 18 Subsection 3 Convention on Cybercrime.

E. Search
1. The Situation
Search and seizure is one of the most important instruments in cybercrime investigation.170 Search andseizure of tangible objects is a traditional investigation instrument in most criminal procedural codes.171
The reason why the drafters of the Convention on Cybercrime nevertheless included a provision dealing
with search and seizure is the fact that national laws often do not cover data-related search and seizure

169 An IP-address does not necessary immediately identify the offender. If law enforcement agencies know the IP-address an offenderused to commit an offence this information only enables them to identify the connection used to log on to the Internet. If a group ofpeople had access to this connection (e.g. in an Internet café) further investigations are necessary to identify the offender.
170 A detailed overview about the elements of search procedures is provided by the ABA International Guide to Combating
Cybercrime, 123 et. seqq. For more information on Computer-related Search and Seizure see: Winick , Searches and Seizuresof Computers and Computer Data, Harvard Journal of Law & Technology, 1994, Vol. 8, page 75 et seqq.; Rhoden , Challenging
searches and seizures of computers at home or in the office: From a reasonable expectation of privacy to fruit of the poisonoustree and beyond, American Journal of Criminal Law, 2002, 107 et seqq.
171 See Explanatory Report to the Convention on Cybercrime, No. 184.

27

RESOURCE MATERIAL SERIES No.79

procedures.172 Based on such provision the investigators would be able to seize an entire server but not
seize only the relevant data by copying them.173
2. The Related Procedural Instrument(i) Article 19 – Search and seizure of stored computer data
(1) Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to search or similarly access:a. a computer system or part of it and computer data stored therein; andb. a computer-data storage medium in which computer data may be stored
in its territory.

(2) Each Party shall adopt such legislative and other measures as may be necessary to ensure that where
its authorities search or similarly access a specific computer system or part of it, pursuant to paragraph
1.a, and have grounds to believe that the data sought is stored in another computer system or part of it
in its territory, and such data is lawfully accessible from or available to the initial system, the authorities
shall be able to expeditiously extend the search or similar accessing to the other system.
		[...]Art. 19 sub-paragraph 1 of the Convention on Cybercrime aims to establish an instrument that enables
investigators to search computer systems as efficiently as they are able to perform traditional search
procedures.174 Art. 19 sub-paragraph 2 of the Convention on Cybercrime addresses a growing problem
within cybercrime related investigations. During the search for information at the physical location of acomputer system investigators frequently realize that the suspect did not store the relevant information(e.g. child pornography) on local hard drive but on an external server which he can access via Internet.175
Using Internet servers to store data is becoming more and more popular.176 To ensure that investigations
can be carried out efficiently it is important to maintain a certain flexibility of investigations. If theinvestigators discover that the relevant information is stored in another computer system they should be
able to extend the search to this system.177

F. Seizure
1. The Situation
The examination of computer systems and especially internal and external storage devices is an
172 “However, in a number of jurisdictions stored computer data per se will not be considered as a tangible object and therefore

cannot be secured on behalf of criminal investigations and proceedings in a parallel manner as tangible objects, other than by
securing the data medium upon which it is stored. The aim of Article 19 of this Convention is to establish an equivalent power
relating to stored data.” Explanatory Report to the Convention on Cybercrime, No. 184.
173 This can cause difficulties in those cases where the relevant information are stored on a server with the data of hundreds ofother users that would not be available anymore when law enforcement agencies seize the server.
174 “However, with respect to the search of computer data, additional procedural provisions are necessary in order to ensurethat computer data can be obtained in a manner that is equally effective as a search and seizure of a tangible data carrier. There
are several reasons for this: first, the data is in intangible form, such as in an electromagnetic form. Second, while the data
may be read with the use of computer equipment, it cannot be seized and taken away in the same sense as can a paper record.”
Explanatory Report to the Convention on Cybercrime, No. 187.
175 The importance of being able to extend the search to connected computer systems was already addressed by the Councilof Europe Recommendation No. R (95) 13 of he Committee of Ministers to Member States concerning problems of criminal
procedural law connected with information technology that was adopted by the Committee of Ministers on 11.09.1995 at the543rd meeting of the Ministers Deputies. The text of the Recommendation is available at: http://www.coe.int/t/e/legal_affairs/
legal_co-operation/combating_economic_crime/1_standard_settings/Rec_1995_13.pdf
176 One of the advantages of storing the information on Internet servers is the fact that the information can be accessed fromany place with Internet connection.
177 In this context it is important to keep in mind the principle of national sovereignty. If the information is stored on acomputer system outside the territory an extension of the search order could violate this principle. The drafters of theConvention on Cybercrime therefore pointed out: “Paragraph 2 allows the investigating authorities to extend their search orsimilar access to another computer system or part of it if they have grounds to believe that the data required is stored in that
other computer system. The other computer system or part of it must, however, also be ’in its territory” - Explanatory Reportto the Convention on Cybercrime, No. 193. With regard to this issue see as well: New Jersey Computer Evidence Search and
Seizure Manual, 2000, page 12 – available at: http://www.state.nj.us/lps/dcj/pdfs/cmpmanfi.pdf.

28

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

important aspect of computer forensics.178 In general an investigation of the storage devices requires
physical access to the hardware.179
2. The Related Procedural Instrument(i) Article 19 – Search and seizure of stored computer data		[…](3) Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to seize or similarly secure computer data accessed according to paragraphs 1 or 2.
These measures shall include the power to:a) seize or similarly secure a computer system or part of it or a computer-data storage medium;b) make and retain a copy of those computer data;c) maintain the integrity of the relevant stored computer data;d) render inaccessible or remove those computer data in the accessed computer system.
(4) Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to order any person who has knowledge about the functioning of the computer
system or measures applied to protect the computer data therein to provide, as is reasonable, thenecessary information, to enable the undertaking of the measures referred to in paragraphs 1 and 2.
Art. 19 sub-paragraph 3, Convention on Cybercrime enables the law enforcement agencies to seize
computer hardware.180 In addition to the tradition of seizure of the hardware, the Convention on Cybercrime
enables the law enforcement agencies to copy the relevant data instead of seizing the hardware.181 If the law
enforcement agencies decide not to seize the hardware but only to copy the relevant data there are a numberof side-measures provided by Art. 19 Convention on Cybercrime to maintain the integrity of the copied data
and remove the original data.182
Very often the investigators will not be able to identify the exact location of relevant data without thehelp of the system administrator that is responsible for the server infrastructure.183 But even if they areable to identify the hard drive protection measures might stop them from searching for the relevant data.
178 Hannan , To Revisit: What is Forensic Computing, 2004 – available at: http://scissec.scis.ecu.edu.au/publications/forensics04/Hannan.pdf; Etter , The forensic challenges of e-crime, Australasian Centre for Policing Research, No. 3, 2001,
page 4 – available at: http://www.acpr.gov.au/pdf/ACPR_CC3.pdf;
179 Regarding the advantages of remote forensic tools compared with traditional search and seizure procedures see Gercke ,Secret Online Search, CR 2008, page 245 et. seqq. But there are also disadvantages related to remote investigations. Apartfrom the fact that direct access enables the law enforcement agencies to examine the physical condition of storage media
physical access to a computer system it is the only way to ensure that the files on the suspects computer are not modified
during the investigation. Regarding the importance of protecting the integrity of the examined computer system see: Meyers/
Rogers , Computer Forensics: The Need for Standardization and Certification, page 6 – available at: http://www.utica.edu/
academic/institutes/ecii/publications/articles/A0B7F51C-D8F9-A0D0-7F387126198F12F6.pdf.
180 For guidelines how to carry out the seizure of computer equipment see for example: General Guidelines for Seizing
Computers and Digital Evidence, State of Maryland, Maryland State Police, Criminal Enforcement, Command, Computer
Crimes Unit, Computer Forensics Laboratory – available at: http://ccu.mdsp.org/Guidelines%20-%20Seizure%20of%20
Digital%20Evidence.htm; New Jersey Computer Evidence Search and Seizure Manual, State of New Jersey, Department of
Law and Public Safety, Division of Criminal Justice – available at: http://www.state.nj.us/lps/dcj/pdfs/cmpmanfi.pdf.
181 Regarding the classification of the act of copying the data see: Brenner/Frederiksen , Computer Searches and Seizure: Some
Unresolved Issues in Cybercrime & Security, IB-1, page 58 et seqq.
182 “Since the measures relate to stored intangible data, additional measures are required by competent authorities to secure
the data; that is, ‘maintain the integrity of the data’, or maintain the ‘chain of custody’ of the data, meaning that the data whichis copied or removed be retained in the State in which they were found at the time of the seizure and remain unchanged during
the time of criminal proceedings. The term refers to taking control over or the taking away of data.” Explanatory Report to theConvention on Cybercrime, No. 197.
183 “It addresses the practical problem that it may be difficult to access and identify the data sought as evidence, given thequantity of data that can be processed and stored, the deployment of security measures, as well as the nature of computer
operations. It recognizes that system administrators, who have particular knowledge of the computer system, may need tobe consulted concerning the technical modalities about how best the search should be conducted.” Explanatory Report to theConvention on Cybercrime, No. 200.

29

RESOURCE MATERIAL SERIES No.79

The drafters of the Convention therefore included an obligation of system administrator and other people,
who have knowledge about the location of stored information to assist the law enforcement agencies.

G. Collection of Traffic Data
1. The Situation
Traffic data play an important role in cybercrime investigation.184 Having access to content data enables thelaw enforcement agencies to analyse the nature of messages of files exchanged and help to trace the offender. By
monitoring the traffic data generated during the use of Internet services, law enforcement agencies are able toidentify the IP-address of the server and can then try to determine the physical location of the offender.
2. The Related Procedural Instrument
With Art. 20 the Convention on Cybercrime provides the legal basis for the real time collection of traffic data.

(i) Article 20 – Real-time collection of traffic data
(1) Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to:a) collect or record through the application of technical means on the territory of that Party, andb) compel a service provider, within its existing technical capability:i) to collect or record through the application of technical means on the territory of that Party; orii) to co-operate and assist the competent authorities in the collection or recording of,traffic data, in real-time, associated with specified communications in its territory transmitted
by means of a computer system.
(2) Where a Party, due to the established principles of its domestic legal system, cannot adopt themeasures referred to in paragraph 1.a, it may instead adopt legislative and other measures as may
be necessary to ensure the real-time collection or recording of traffic data associated with specified
communications transmitted in its territory, through the application of technical means on that territory.
(3) Each Party shall adopt such legislative and other measures as may be necessary to oblige a service
provider to keep confidential the fact of the execution of any power provided for in this article and any
information relating to it.
(4) The powers and pr ocedures referred to in this article shall be subject to Articles 14 and 15.
The provision is neither drafted with preference to a specific technology nor is it intending to set
standards that go along with the need for high financial investments for the industry involved.185

H. Interception of Content Data
1. The Situation
In some cases the collection of traffic data is not sufficient to collect the evidence that is required to convict
the suspect. This is especially relevant in those cases where the law enforcement agencies do already know
the communication partners and the services used but have no information about the information exchanged.
184 “In case of an investigation of a criminal offence committed in relation to a computer system, traffic data is needed to trace

the source of a communication as a starting point for collecting further evidence or as part of the evidence of the offence.
Traffic data might last only ephemerally, which makes it necessary to order its expeditious preservation. Consequently, its
rapid disclosure may be necessary to discern the communication’s route in order to collect further evidence before it isdeleted or to identify a suspect. The ordinary procedure for the collection and disclosure of computer data might therefore be
insufficient. Moreover, the collection of this data is regarded in principle to be less intrusive since as such it doesn’t reveal
the content of the communication which is regarded to be more sensitive.” See: Explanatory Report to the Convention on
Cybercrime, No. 29. Regarding the importance of traffic data in Cybercrime investigations see as well: ABA International
Guide to Combating Cybercrime, page 125; Gercke , Preservation of User Data, DUD 2002, 577 et. seqq.
185 “The article [Art. 20] does not obligate service providers to ensure that they have the technicalcapability to undertakecollections, recordings, co-operation or assistance. It does not require them to acquire or develop new equipment, hire expert
support or engage in costly re-configuration of their systems.” Explanatory Report to the Convention on Cybercrime, No. 221.

30

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

2. The Related Procedural Instrument
Art. 21 enables the law enforcement agencies to record data communication and analyse the content.186(i) Article 21 – Interception of content data
(1) Each Party shall adopt such legislative and other measures as may be necessary, in relation to a rangeof serious offences to be determined by domestic law, to empower its competent authorities to:a) collect or record through the application of technical means on the territory of that Party, andb) compel a service provider, within its existing technical capability:i) to collect or record through the application of technical means on the territory of that Party, orii) to co-operate and assist the competent authorities in the collection or recording of,content data, in real-time, of specified communications in its territory transmitted by means ofa computer system.
(2) Where a Party, due to the established principles of its domestic legal system, cannot adopt themeasures referred to in paragraph 1.a, it may instead adopt legislative and other measures as may benecessary to ensure the real-time collection or recording of content data on specified communications in its
territory through the application of technical means on that territory.
(3) Each Party shall adopt such legislative and other measures as may be necessary to oblige a service
provider to keep confidential the fact of the execution of any power provided for in this article and any
information relating to it.
(4) The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
This includes files downloaded from websites or file-sharing systems, e-mails sent or received by theoffender and chat conversations.

186 One possibility to prevent law enforcement agencies to analyse the content exchanged between two suspects is the useof encryption technology. Regarding the functioning of encryption procedures see: Singh ; The Code Book: The Science ofSecrecy from Ancient Egypt to Quantum Cryptography, 2006; D’Agapeyen , Codes and Ciphers – A History of Cryptography,
2006; An Overview of the History of Cryptology – available at: http://www.cse-cst.gc.ca/documents/about-cse/museum.pdf.

31

139TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

MANAGING LARGE AMOUNTS OF ELECTRONIC EVIDENCE
Cybercrime Lab*
Computer Crime and Intellectual Property Section
Criminal Division

Ovie L. Carroll, Director, CCIPS Cybercrime Lab
Stephen K. Brannon, Cybercrime Analyst, CCIPS Cybercrime Lab
Thomas Song, Senior Cybercrime Analyst, CCIPS Cybercrime Lab
Joel M. Schwarz, Trial Attorney, CCIPS

I. INTRODUCTION
Investigations usually focus on finding and getting evidence. A computer-related investigation often
generates a particularly large amount of evidence. Managing all this data and using it effectively through thelifecycle of an investigation presents special problems. This article explores those problems and describes
general strategies and some specific solutions for managing large amounts of electronic evidence.
The Cybercrime Lab in the Computer Crime and Intellectual Property Section regularly provides
advice and assistance with the issues in this article. You can contact the Lab at (202) 514-1026 or at www.
cybercrime.gov. Also, from within the Criminal Division or US Attorneys’ offices, you can access resourceson our intranet site, CCIPS Online, by going to DOJ Net and clicking the “CCIPS Online” link.

II. CONCEPTS AND CONCERNS
A. Preliminary Concerns
There is one cardinal rule for electronic evidence: always work on a copy. Original evidence or the single
best copy should be duplicated and kept safe. A clean chain of custody record should be maintained for thatbest copy. Only use working copies of evidence for review and analysis. Always keep the original or best
copy safe and disturb it as little as possible.
Working directly with original evidence or your best copy is extremely dangerous. The first reason isthat simply interacting with it will likely change it. It is also dangerous because there is a greater risk thatdata will become corrupted or lost due to hard disk failure. The integrity of electronic evidence is importantjust as with other types of evidence. But the integrity of electronic evidence is also important because if it isintact, forensic copies should theoretically be exact. With some other types of forensic evidence, testing andanalysis use up the evidence itself. But with electronic evidence, any number of exact copies can be made,and the defence is often entitled to receive a copy for review.
If the government can’t produce an exact copy of the evidence that it seized or obtained for any reason,
it opens a Pandora’s Box of questions about what went wrong. Even if someone accidentally modifies
evidence, it is still likely admissible. If the modification is clearly documented and explained then theevidence can probably be used. However, the modification may influence the evidence’s weight.
Electronic evidence is much easier to manage if a system of organization is already in place before it iscollected. As investigations get evidence, they naturally document and preserve original versions. But ascopies are made, it is helpful to plan a system of organization and start filing copies of evidence into it. Far
too often, investigations let the order in which they get evidence or its sources dictate its organization. Thenat the end of the investigation when the evidence needs to be sorted differently to be used, there may not betime to reorganize it.
* The Cybercrime Lab is a group of technologists in the Computer Crime and Intellectual Property Section (CCIPS) of the
Department of Justice, in Washington, DC. The lab serves CCIPS attorneys, Computer Hacking and Intellectual Property (CHIP)
units in the US Attorneys’ offices, and Assistant US Attorneys in general, by providing technical and investigative consultations,assisting with computer forensic analysis, teaching, and conducting technical research in support of DOJ initiatives.

32

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

The idea is to think forward to your analysis so it can guide your initial setup. For example, you may
be starting an investigation of multiple targets using multiple websites. If you know that most of yourquestions will be about one target or another, then you would organize evidence by target as you get it. On
the other hand, if you know you will need to paint a coherent picture of the activity on each website, you
would organize evidence by website. Planning and setting up an organizational system at the beginning of aninvestigation may determine whether or not electronic evidence is manageable at the end.
Another preliminary concern for electronic evidence is the use of date and time information. Problems withcomputer date and time settings can be fatal to an investigation. Overlooked date and time issues can ruin an
investigation quickly. Targets can be misidentified, evidence can show a target did something he or she did not
really do, and evidence from different computers can be inconsistent. They are all too common, but they arestill often overlooked. Every computer, server, etc. has an internal clock. The date and time - or at least what
the computer believes they are - will be spread through all the evidence the computer produces, especially any
logs. The clock setting may be set wrong or it may be set to a different time zone. Investigations need to findand adjust both for inaccuracies of any particular clock and for discrepancies between different clocks.
Fortunately, it is possible to document and compensate for almost any problem with dates and times
as long as it’s both identified and quantified . Say you are running an undercover website and logging theactivity that takes place on it. You may discover that the computer running the website had an incorrectly
set clock and it was set exactly 23 minutes fast for the last year. With both of those pieces of information, theyear’s worth of log evidence can be salvaged and used by subtracting 23 minutes from every time.
A final idea that should guide everything you do with electronic evidence is: let the computer do thework . You may find yourself in a situation where you are tempted to have an army of investigators orparalegals process mountains of evidence manually. This is almost always the wrong answer. It’s far better tothink of a way for the computer to do brute force searching, sorting, etc.
A human brute-force attack is too slow, but it also introduces the potential for too many errors. Even themost conscientious person can’t avoid making mistakes when he or she has to do the same thing 1,000 times.
On the other hand, once you give a computer accurate instructions, it can easily execute them a million times
without any mistakes. A long list of answers without mistakes is often what you need from electronic evidence.
What are some things an investigation might need to do with electronic evidence? Thinking about thisquestion helps structure our discussion. The first task is to organize and manage it. The next task is tosearch it. It often feels like trying to find a needle in a haystack. For example, an investigation may needsearch through millions of lines of logs to find the one record that shows a target did something on a website.
The third and final type of task is analysing and interpreting evidence. This entails looking at all of theevidence, or a large part of it, and synthesizing new information from it. This type of task is anticipated lessoften but can still provide the most useful information. For example, think again about an investigation ofmany targets using many websites. It might be necessary to identify the most egregious users to selecttargets for prosecution. We would need to quantify each target’s conduct across all the websites throughout
the course of the investigation and then compare the targets.

B. Indexing
Indexing is a technique to search through large bodies of data faster. Indexing goes through the entire
body of data and creates a map of what information is where. This map, or index, functions like the index ina book or the card catalogue in a library. Building an index can take a long time. But once it’s done, searches
can be done much faster. For example, Google and LexisNexis have indexed all their data to enable users tosearch it quickly. It is hard to imagine how long it would take to search every word on the Internet or every
word in the LexisNexis databases if they had not already been indexed. In situations with a large amount ofdata where multiple searches will be necessary, it’s generally best to index once and then use that index tosearch. In the long run, this is far faster than conducting each search through all the data.
Indexed searching can be done within computer forensics programmes. It can also be done using standalone programmes that only index and search data. The computer forensics programme Forensic Toolkit

33

RESOURCE MATERIAL SERIES No.79(FTK) made by AccessData has the capability to index data built in and is widely considered the leader inindexed searching. The other leading computer forensics software is EnCase, made by Guidance Software.
Its newest version, version 6, also incorporates indexing capabilities. Indexing can be done in previous
versions of EnCase by using a third-party add-on, such as Mercury by MicroForensics. Once data in aforensics programme has been indexed, searches that would have taken minutes or hours are completed
almost instantly.
There are also stand-alone programmes that just do indexed searching. DtSearch produces a mature suiteof programmes that use the same indexing engine as FTK. The basic programme searches text in multiple
formats and highlights results. It also has options to use fuzzy, phonic, wildcard, stemming, and thesaurus
search options. These are all search techniques that find results similar to or related to the term you
provide. This can find misspelled occurrences of words, so it is especially useful when searching throughanything written by a person. For example, a fuzzy search for “apple” would also find “appple”. DtSearch canalso display results as web pages that are easy to use. Another programme in the product suite, dtSearch
Publish, lets you publish and distribute your evidence in an indexed and quickly searchable package. This
product is excellent for giving indexed copies of your evidence to others to review.

C. Visualization
This article discusses many ways to manage, search, and analyse electronic evidence. Sometimes the
only way to see important relationships is to visualize large amounts of information. Also, some results are
only useful to a prosecutor or jury when they are presented visually. There are programmes available thatcombine database and visualization features to enable an analyst to find connections and illustrate them.
These tools are often used in cases with extensive financial data or phone records. They are also particularly
useful to show relationships indicated by email exchanges or network traffic. One of the most popular
programmes is Analyst’s Notebook by i2 (http://www.i2.co.uk/Products/Analysts_Notebook/default.asp). It
can illustrate relationships as shown in the screen capture below.

34

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

The analyst’s notebook can also perform and illustrate timeline analysis. An example of this is below.

III. TECHNIQUES AND TOOLS
A. Email
It is important that electronic evidence only be reviewed on a computer that’s not connected to theInternet. It is most important when reviewing email evidence. Reviewing email on a computer connected to
the Internet risks accidentally sending a read receipt response to addressees on the email. Also, some email
uses HTML, the language for making web pages, to control formatting. In fact, Outlook created message
in this format by default. Since HTML can have references to images and other files on websites, simply
opening it can cause your computer to connect to those websites to retrieve message elements. This candirectly or indirectly warn a tech-savvy target that he or she is under investigation.
Reviewing email on a computer connected to the Internet even risks sending an email to a target tipping
him or her off. We know of a case where the agent reviewing an email between conspirators accidentally
double-clicked the “reply-all” button. Worse yet, the agent was reviewing the email in his own email accounton his work computer. So he created and sent an email from his work email address to all the conspirators
jeopardizing the investigation. In fact, a computer used to review email should not only be disconnectedfrom the Internet, but it should also be dedicated to offline evidence review. An offline computer may keep
track of read receipts that it is unable to send, then if it is later connected to the internet, it will take theopportunity to send them all.
Email provides several sources for valuable information. Some will often be in the body of an email.
In addition to content, one can search or sort email by elements of the header, like the sender, recipient,subject, or date sent. It may also be helpful to search or sort by other less obvious attributes like the numberof attachments, attachment names, priority, or age.

35

RESOURCE MATERIAL SERIES No.79

Once an investigation gets email from one or more sources, the first step is usually to import it all into
one email programme. This facilitates organization and management. Sometime an investigator will instead
review email one message at a time or import different groups of email into different email programmes. But
this makes managing the evidence harder and searching it harder still. When all email is in one programme,
one can easily organize it by folders in a structure that makes sense. Then one can conduct searches acrossall email or just across certain folders.
There are many free and commercial email programmes available. In our lab’s experience MozillaThunderbird is one of the best free programmes for managing and searching email for all but the largest
cases. The programme is free and available at http://www.mozilla.com/en-US/thunderbird/. Other
programmes that are either free or likely already installed on most computers include Outlook, Outlook
Express, and Eudora. The largest cases may need to use specialized forensics programmes like AccessData’s Forensic Toolkit and Paraben’s E-mail Examiner.
The rest of this section about email will describe the steps to import, manage, and search email. A
preliminary step is needed for most email programmes. In order to operate, most programmes need theuser to create a profile. This simply involves entering a name, email address, and a few other pieces of
information. When a programme first starts, it usually walks the user through the account creation process.
Made-up information is fine for this since the computer won’t be connected to the Internet anyway.
Email in the most common formats can be imported into Mozilla Thunderbird. One common format is
the mbox format. Such files are easily recognizable by the file extensions .mbx or .mbox. In fact, the mbox
format is very common, and if a file with email has no file extension, it is likely an mbox file.
Thunderbird uses the mbox format internally, so the simplest way to import emails in that format is tocopy the file to the directory where Thunderbird stores its own files. Then the next time the programme
starts, the mbox file and all its email appears as a folder under “Local Folders”.
On Windows XP, the directory is C:\Documents and Settings\[User Name]\Application Data\Thunderbird\
Profiles\xxxxxxxx.default\Mail\Local Folders\ (xxxxxxxx is 8 random characters).
On Windows Vista, the directory is C:\users\[User Name]\AppData\Roaming\Thunderbird\Profiles\
xxxxxxxx.default\Mail\Local Folders\ (xxxxxxxx is 8 random characters).
Just copy email evidence files to that directory, then open the programme and it’s ready to use.
Another common email format is Micrsoft’s .pst (Personal Folders) format. Thunderbird can’t import a.pst file directly, but it can be imported into Microsoft Outlook first and then from Outlook into Thunderbird.
Again, it is essential to first create a profile in each programme as described above. Importing a .pst file into
Outlook only takes a few steps. The goal for this step is to get email from a .pst file into the Personal Folders
in the Outlook profile. These instructions are specifically for Outlook 2003.
1.
2.
3.
4.
5.

In Outlook, click the File menu then Data File Management.
Click the Add button then click OK.
Find and select the .pst file.
Optionally, type in a new name in the “Name” box (for example, “warrant response”) then click OK.
Click Close.

Now the .pst file should appear as a folder on the bottom of the left pane (in our example, “warrant
response”). The last thing to do in Outlook is move the mail from the new folder to a folder inside the
Personal Folders. To do that:
1.
2.
3.
4.

36

Right-click on Personal Folders and select New Folder.
Name the folder (for example, “Bad Guy1”) and click OK.
Click on the .pst folder at the bottom (“warrant response”).
Select all the emails by clicking the Edit menu then selecting Select All.

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

5.

Carefully click on any email and drag it into the folder created in the Personal Folders (“Bad Guy1”).
This should move all email from the .pst file into the local folder.

Now you can close Outlook and open Thunderbird to import the email from Outlook. These instructions
are for Thunderbird 2.0.0.6.
1.
2.
3.
4.

In Thunderbird, click the Tools menu then Import.
Select Mail then click Next.
Select Outlook then click Next.
The process imports every folders from Outlook, so it may be helpful to delete empty or unrelated
folders.

Bringing all email evidence into one programme has two main advantages. First, you can organize andmanage it in a way that works best for your case regardless of how you got it. Second, and even more beneficial,
you can search through all email evidence at the same time or search only through sections that make sense.
To open Thunderbird’s search interface click Edit, then Find, then Search Messages. The searchinterface looks like this:The box at the top selects which folder or folders to search. Select “Local Folders” and leave the “Search
Subfolders” box checked to search in all email. The two radio buttons and the middle pane specify search
conditions. The radio buttons determine whether all the conditions must be met for a result to be included
or if it will be included when any of the conditions are met. Each search condition specifies where in theemail to look, the condition to meet (i.e., contains, doesn’t contain, begins with), and the search term. You
can easily add or remove any number of conditions by clicking the + or – buttons.
Click the Search button and search results are displayed in a list in the bottom pane. This list can besorted by any field. A search hit is easy to file into a folder. For example, you can create a folder called“key emails.” Then when you select an email in the search results list, you can click the File button on thebottom and select the folder you want to move it to. You can also save a useful search. Click the Save as
Search Folder button and it will create a search results folder. The results will be viewable as if they were afolder, but the original email won’t be moved.

37

RESOURCE MATERIAL SERIES No.79

B. Chat Logs
Many computer-related investigations involve records of online chat, or instant messaging. Instantmessaging lets two or more people to have a real-time, text-based conversation over the Internet. Each
user types messages into a window on his or her computer, and every user who is party to the conversation
sees all the typed messages in real time. So for example in a one-on-one chat, two people send text message
back and forth. Both people see the conversation scroll by in a window. Or in a chat room, or channel, withseveral people communicating, each person sees a window representing the room and everything everybody
types is visible. Most instant messaging programmes allow users to log their chats and some programmes
even log by default. You may get chat logs from a target’s computer, from a victim, or you may record themyourself using a co-operator or undercover agent.
The programme mIRC is the most common programme used for IRC chat. IRC is a type of chat popularin many tech-savvy crime circles, such as hacking, ID theft, and high-level copyright infringement. The
mIRC programme conveniently has an option to log its communications. The person using the programme
only needs to check the right boxes and the programme produces its own logs and organizes them in folders.
So even as it creates the logs mIRC can already introduce a level of organization.

The programme also has an interface for viewing and searching its logs. Even if you later reorganize
the chat logs into a different folder structure that is easier to manage, this interface can still see them andinteract with them in the same way. It looks like this:Extensive chat log evidence may require powerful techniques like those described in the next sectionof this article. But for smaller collections of chat logs, this interface allows you to perform basic searching,38

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

sorting, and analysis. The controls at the top search and filter which chat logs are listed. The bottom of theinterface lists log files that meet the criteria in the top half. It provides ways to view and manage them. You
can open any chat by double-clicking on it. By default it will open in a text editor, like Notepad, where you
can again search for specific terms within that chat. It is also possible to merge related logs into a single file.
You can select multiple files from the list (or all of them), and then click the Merge button. This combines
the selected files into one new file.
Here are several examples of how you can use this interface to search and analyse chat logs. If you want to
see who you have logs of conversations with, you can simply sort by name. If you want to see what a particulartarget has been chatting about, you could search for his or her user name. The resulting list of log files would
be the chats in which he or she spoke. Then you could merge these into one file and send it to someone else
for further analysis. You can find out who was talking about a particular topic and when they were doing it.
You could do this by searching for a term linked to the topic. Sorting the results by name first and date second
would show you who was involved in conversations about the topic and when the conversations took place.

C. Logs
Sometimes commercial off-the-shelf programmes are best for managing electronic evidence of the typethey are designed to manipulate. Sometimes a programme can even manage its own logs. Often simple
solutions like this are best. But some types of evidence have no readily available programme to manage
them. Or if a programme is available, it may not do everything needed. This is often the case with raw log
evidence. Log evidence is a file generated by a computer that records events, usually sequentially. Thesefiles can be logs of system events, such as every time a user logged on. They can also be logs of activities,
for example, a file server may log every file transfer. Networking elements like firewalls can also generatelogs that record activity on a network. These log files can easily be millions of records long or longer, andnormal tools and techniques for managing them quickly become insufficient.
Microsoft Excel can open smaller log files, but it has several limits to its usefulness. First, in versions
up to Excel 2003, a worksheet could not have more than 65,536 rows. Many log files have more lines. Excel
2007 can now have up to 1,048,576 rows, so it can at least theoretically open most typical log files. A second
limitation is that when Excel opens a file it attempts to load the entire file’s data into memory at the sametime. For large files this can be impractically slow. Excel’s final limitation is that its search and analysis
capabilities are far inferior to those of databases.
The Cybercrime Lab has had great success using custom Microsoft Access Databases to manage log
evidence. Using Access has several benefits: as part of Microsoft Office, it is already installed on mostcomputers. It is reasonably easy for people with other technical experience to learn and use. Finally, it is powerfulenough to handle all but the most voluminous log evidence (we almost never need to move to a more robust
database with a bigger capacity). Not everyone is comfortable working with databases. But it is likely you can findsomeone in your organization with the aptitude for basic database work who can assist your investigation.
The same tools and techniques can be used for any kind of log evidence, but for the sake of clarity we’ll
discuss one type of log as an example. In our section we manage log evidence for many “warez”, or online
piracy cases. Targets in these cases often use file servers where each file transfer is logged. Each time afile is transferred, a line is written to a log file with information such as the date and time, the file name, thedirection (upload or download), and the user’s name. These log files can easily grow to be millions of lines
long. Managing them as text files quickly becomes difficult and searching them or making sense of themquickly becomes impossible.
The logs are easy to manage once they are imported into a table in an Access database. The essential
step is to split each line of the log into pieces and put each piece into a separate column in the table. So in ourtransfer log databases, a row in the table represents one line of the log. And every row has a column for eachpiece of information in it. For example there is a date/time column, a filename column, a direction column, etc.
Splitting each log line into its parts is essential: it allows you to use the full power of a database. Depending on
the format of a log file, Access may be able to import it and split each line into separate fields at the same time.
Otherwise a simple Visual Basic module can parse the log files into pieces and perform any additional logic
necessary while it imports them. Here is sample code for importing lines of a log file into a table in Access:39

RESOURCE MATERIAL SERIES No.79

Public Function import(path As String)
Dim rs As Object 'destination table
Set rs = CurrentDb.OpenRecordset("tablename")
Dim pcs() As String 'pieces
Dim inp As String 'line read from input file
Open path For Input As #1 'open file for input'import fileDo While Not EOF(1) 'check for end of file		Line Input #1, inp 'read line of data		
If inp <> "" Then			 'split line			 pcs = Split(inp)			 'put in record
			 With rs				 .AddNew				 .field1 = pcs(0)				 .field2 = pcs(1)				 .field3 = pcs(2)				 'etc.
			 End With		End IfLoop
Close #1 'close filers.Close
End Function
Once the logs are in a table in a database, you can do any searching or sorting by creating queries. A
query is a structured way of getting data out of a database to answer a question. Access has a friendly
interface to guide you through the process of setting up a query. You can select which fields you want inyour answer, which fields you want sorted, and you can add any conditions. Keep in mind that Access cansave any query you create and run it again at any time. This way, if you add or change data, you can ask the
database the same question again and get the updated answer.
For example, sometimes we want to know who was using a particular file server. We made a query that
told the database, “show just the user column, sort it in alphabetical order, and don’t show duplicates”. When
we run the query, the database quickly generates a new set of data, like a mini-table, that answers the exact
question we described. It gives us an alphabetical list of unique user names. Databases do this efficiently, so
it easily runs through millions of records and gives us an answer in a few seconds.
We also often want to know what a particular target has done. We want a list of his transfers. To do thiswe made a query selecting three columns: file transferred, date, and user. We sorted the query by the dateand limited it to one user (a condition for the user column). Again, we had another mini data set to answer
our question in a matter of seconds.
Finally, sometimes we need to run a more complex kind of query. For example, we want to know who
the most active users are on a server. In other words, who uploaded and downloaded the most. Our answer
was a table with these three columns: user, count of his of uploads, and count of his downloads. Counting
something for each user requires something called a crosstab query. Fortunately, Microsoft knows it’s a little
more complicated so they provide a special wizard that walks you through creating one. You don’t even haveto understand how it works: you just use the wizard to describe what you want.

40

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

In our lab, we had many related cases like this and many people needed to use the evidence. So we
programmed a user interface to make the functions described above look like a friendly programme. A
screenshot of the programme’s main window is below. It uses tabs to group tasks (Database Management) andquestions (General Lists, Analysis – All Users, Analysis – One user, etc.). On each tab there is a buttons foreach query. If you point the mouse at a button it shows a brief description of what the query does. A databaseapplication with a user interface like this certainly isn’t necessary for every case. But it may be appropriate
when you need to harness the power of a database and make it available to a large number of non-technicalusers.

IV. CONCLUSION
We hope that the strategies and examples in this article will help prepare you to manage electronic
evidence in your cases. The Computer Crime and Intellectual Property Section and the Cybercrime lab isalso available to AUSA’s for consultation on computer forensic and other technical investigative matters bycalling (202) 514-1026. Many other resources are available on our section’s public website, www.cybercrime.
gov. In addition, anyone in the Criminal Division or US Attorneys’ Offices can find additional resources on
our new intranet site, CCIPS Online. Just go to DOJ Net and click on the “CCIPS Online” link. We also
encourage AUSAs to take advantage of the many courses we present at the National Advocacy Center
throughout the year.

41

139TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

RETHINKING THE STORAGE OF COMPUTER EVIDENCE
Computer Crime and Intellectual Property Section
Criminal Division, US Department of Justice
Tyler Newby, Trial Attorney, CCIPS
Joel M. Schwarz, Trial Attorney, CCIPS
Ovie L. Carroll, Director, CCIPS Cybercrime Lab

I. INTRODUCTION
When a federal criminal investigation involves computer evidence, prosecutors and investigators often
rely on the services of investigators who have special training and accreditation in the field of computer
forensics. These forensic examiners are typically responsible for the collection, processing and analysis ofdigital evidence acquired during an investigation. Primary among computer forensic examiners’ duties is
ensuring that the data seized during an investigation remains unaltered through trial.
The foundation of electronic evidence collection and analysis and the subsequent admissibility and use ofthat evidence at trial is the creation of a forensic image. Once a forensic image of the original data is created,
it is typically copied to a hard disk drive, which is then stored in a locked evidence room. Chain of custodylogs are maintained for anyone who accesses the hard drive image.
In complex cases, such as intrusion cases, a prosecutor or case agent may request full forensic analysisof an image to search for evidence to be used at trial. In less complex cases, a case agent or prosecutor may
want to conduct a triage review of the image to search for easily identifiable evidence of a crime, such as
pirated software and movies, chat logs and e-mails discussing the crimes, digital photographs and the like. Inthat case, the case agent may want to review a working copy of the forensic image, which requires putting ina request for a working copy image to be made.
In either situation, case agents and prosecutors are likely to confront a long queue when they put ina request for assistance from computer forensic specialists. As electronic storage of data has become
increasingly common, the demands placed on a limited pool of computer forensic examiners have increased.
For example, in the Federal Bureau of Investigation’s FY2008 Authorization and Budget Request toCongress , it noted that its Computer Analysis and Response Team’s (CART) case backlog increased 58%
from 1,258 cases to 1,991 in just a one year period from FY2004 to FY2005 and is likely to increase in the
future. As electronic communication devices, home networks and increasingly capacious hard drives become
more prevalent, already thinly stretched investigative resources are likely to be in even more demand. Thus,
it is not unlikely that a hard drive containing the evidence prosecutors need to prepare and try their cases
will sit on a shelf for a period of several months, if not years.
This reality raises the basic question of whether storing an increasing number of hard drives – whichlike all things mechanical can break – for years on shelves in evidence rooms is the best way to store digital
evidence. This article suggests an alternative evidence storage method for forensic images – storing themon secured Redundant Array of Independent (or Inexpensive) Disks (RAID) systems. This alternative
may save space in evidence rooms and will better protect sensitive evidence from inadvertent destruction.
Furthermore, storing images on a RAID, if done properly, will not affect authentication of the image as a
duplicate of the original electronic media at trial.
This storage method most clearly applies to cases in which investigators make an image copy of theelectronic media at the scene. Where investigators remove computers containing electronic evidence fromthe scene, use of RAID storage may also be appropriate, but prosecutors should consider the possibility ofdefence challenges before wiping the original computer hard drive or returning it to its owner. Of course, if
the computer hardware is seized because it is contraband, the fruit of a crime, or an instrumentality it should
be retained pending disposition of the case or forfeiture proceeding.

42

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

II. THE BASICS OF FORENSIC IMAGING
Forensic imaging is the process used to obtain a bit for bit copy of the data residing on the original
electronic media obtained by law enforcement – regardless of whether that media is a single hard disk drive,
flash memory card, DVD, compact disc or mobile phone SIM card. The imaging process entails the copyingof all of the data present on the original storage media device, including system files, hidden and deleted
data from allocated (partitioned), unallocated (un-partitioned), and free space (un-used space on a formatted
partition).
Once the imaging procedure is completed, the image of the hard drive contains all logical files, erased
files, and unused space which are available to the original hard disk drive. From there, the investigatorcan examine the image for relevant evidence, without accessing the original seized hard drive at all. This
process allows investigators to review a duplicate of the original evidence while preserving that evidence inexactly the form it existed at the time of seizure.

III. EVIDENTIARY ISSUES RAISED BY FORENSIC IMAGING
Prosecutors and investigators must be mindful that the ultimate goal of any investigation is to acquire
evidence that will be admissible at trial. The creation of a copy of original electronic evidence raises
authentication, best evidence and reliability concerns. How can one be sure the forensic imaging process
produced a true copy of the original evidence? Could the forensic image have been altered or corrupted in
the time between its creation and offering into evidence at trial?

A. Best Evidence Issues
Federal Rule of Evidence 1002 requires the use of an original writing, recording or photograph to provethe contents of those items, unless provided otherwise by federal statute or the Federal Rules of Evidence.
FED. R. EVID. 1002. The exception that proves the rule for forensic images is Rule 1003, which provides
that a “duplicate” is admissible to the same extent as an original unless a genuine challenge is made to theauthenticity of the original or it would be unfair to admit the duplicate instead of the original. FED. R. EVID.
1003. Rule 1001(4) defines a duplicate as a copy of the original made by, among other things, “mechanicalor electronic re-recording . . . or by other equivalent techniques which accurately reproduces the original.”
FED. R. EVID. 1004. Thus, the focus must be on whether the image is an accurate and authentic reproductionof the original evidence.
B. Authentication of Forensic Images
Authentication is a predicate to the admissibility of any physical evidence. See FED. R. EVID. 901(a). To
satisfy Rule 901, the proponent must produce “evidence sufficient to support a finding that the matter inquestion is what its proponent claims.” Id.; see, e.g., United States v. Simpson , 152 F.3d 1241, 1250 (10thCir. 1998). This requirement is typically easy to satisfy when the evidence is a single document and aco-operating witness, such as a recipient, author or custodian is available to authenticate it.
While the authentication requirements for computer data are no different than for other forms ofevidence, authentication can appear more daunting when the data was extracted from a copy of the
defendant’s media that was made outside the defendant’s presence. Furthermore, due to backlogs in
obtaining forensic analysis of seized computer media, it is likely that the copies of the seized media sat
in on a shelf in an evidence room for months or years before trial. These factors, combined with the ease(perceived or real) of altering computer data without notice, may tempt a particularly aggressive defence
counsel to challenge authenticity of the proffered data.
Courts have generally looked askance at authenticity challenges to electronic evidence that areunsupported by anything other than speculation that the original data was altered by an unseen hand. See,e.g., United States v. Whitaker , 127 F.3d 595, 602 (7th Cir. 1997) (affirming admission of computer records
where allegation of tampering was “almost wild-eyed speculation . . . [without] evidence to support sucha scenario.”); United States v. Glasser , 773 F.2d 1553, 1559 (11th Cir. 1985) (“The existence of an air-tightsecurity system [to prevent tampering] is not, however, a prerequisite to the admissibility of computer
printouts. If such a prerequisite did exist, it would become virtually impossible to admit computer-generated
records.”) In Whitaker , the Seventh Circuit upheld a district court’s admission of print-outs of spreadsheets

43

RESOURCE MATERIAL SERIES No.79

from the original computer seized, where the FBI agent involved in the seizure and the printing testified as
to their authenticity. Id . Despite the permissive standard applied in Whitaker , good trial pre-strategy is toforeclose potential authenticity challenges before they are raised.

IV. HASH ALGORITHMS – AN ANSWER TO EVIDENTIARY ISSUES
To blunt potential authentication challenges to data extracted from a forensic image, it is useful to havea procedure to verify that the data on the image is an exact match of the original media. Computer forensic
specialists have developed a procedure that guarantees just that. This process uses “hash” algorithms,
which verify that the acquired image is the exact copy of the original media. The most commonly used hashalgorithms – the Message Digest 5 (MD5) and Secure Hash Algorithm-1 (SHA-1) – take as input a message
of arbitrary length and produces as output an n-bit “fingerprint” or “message digest” of the input. The
algorithm then produces a digital signature which can be used to identify uniquely a given file, and therefore
establish that the image is an authentic copy of the original evidence.
Verification using hash algorithms is highly reliable. The odds of two random files having the samehash are astronomically small – estimated to be approximately a 1 in 1038 chance. Moreover, the use of thehashing algorithm is a one way function, which means that it is easy to create a hash from a file but almost
impossible to create a file matching a particular hash.
Hash validation, when combined with evidence of a chain of custody between the time the originalcomputer media was seized and the image was created, is strong authenticating evidence that the forensic
image is an exact duplicate of the original. Hash algorithms fit the examples listed in Rule 901(b)(4) of“distinctive characteristics” that can be used to authenticate evidence. FED. R. EVID. 901(b)(4). What arehashes if not indicators of “internal patterns, or other distinctive characteristics” of data?
Although published decisions addressing the use of hashing algorithms to authenticate forensic images
are few, they are uniform in recognizing hashes as a proper means of establishing authenticity. See, e.g.,
Williams v. Sprint/United Mgmt. Co. , 230 F.R.D. 640, 655 (D. Kan.2005) (recognizing that hashing “allows
a large amount of data to be self-authenticating with a rather small hash mark, efficiently assuring that theoriginal image has not been manipulated.”) In Williams , the district court rejected a civil litigant’s purported
concerns about producing electronic evidence in its native format by noting that the parties could detect any
alteration by comparing hash values. The court found that a hash value is a “‘digital fingerprint’ akin to atamper-evident seal . . . the file cannot be altered without a change also occurring in the hash mark.” Id.; seealso Ohio v. Morris , 2005 WL 356801, No. 04CA0036, (Ohio App. Feb. 16, 2005) (admitting forensic image
even where testimony established that imaging software had validated the MD5 hashes of the original andimage matched before forensic examiner erased the original hard drive); Krause v. State , 2007 WL 2004940,
No. 01-05-01136-CR, (Tex. App. July 12, 2007) (forensic analyst’s methodology was sufficiently reliable forpurposes of expert testimony where analyst used forensic software that compared hashes on the image andthe original media). Similarly, the Federal Judicial Center has identified MD5 and SHA hashes as commonlyused algorithms to establish the authenticity of a forensic image. See FEDERAL JUDICIAL CENTER, MANAGINGDISCOVERY OF ELECTRONIC INFORMATION: A POCKET GUIDE FOR JUDGES, FEDERAL JUDICIAL CENTER (2007)at 24, quoted with approval in Lorraine v. Markel American Ins. Co. , 241 F.R.D. 534, 536-37 (D. Md. 2007)

V. STORING FORENSIC IMAGES – AN ALTERNATIVE TO THE SHELF
As discussed above, provided that proper chain of custody is established between the times the originalcomputer media are seized and forensic images are created, the hash verification process should eliminate
any concerns over whether the forensic image was altered prior to trial. However, the practical concern of
how and where to store the forensic images remains.
While the prevailing method of storing forensic images is certainly adequate and relatively simple, it
has its shortcomings as well. First, as anyone who has dealt with electronic evidence likely knows, harddisk drives fail. A recent study of 100,000 different types of hard disk drives conducted by researchers at
Carnegie Mellon University found that the actual reported failure rate of hard disk drives is much higher
than stated in manufacturers’ data sheets. Bianca Schroeder and Garth A. Gibson, Disk Failures in the Real44

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

World: What Does an MTTF of 1,000,000 Hours Mean to You? , FAST07, 5TH USENIX CONFERENCE ON FILE
AND STORAGE TECHNOLOGIES (2007). Although the observed real world failure rates were approximately
2%-4% (with some as high as 13%) are still relatively low, no one wants request a continuance of trial
because the hard disk drive on which the forensic image was stored failed. Moreover, frequent handling andtransportation of hard disk drives inevitably jostles the sensitive mechanical parts in the drives and can only
increase the potential for drive failure.
A more advanced and safer method of maintaining forensic images is to upload or copy the forensic image
and hash, to a fault tolerant RAID. A RAID is a category of disk drives that employ two or more drives incombination for fault tolerance and performance. The entire purpose of RAID storage is redundancy – if one
disc in the array fails, the data remains secure on one of the other redundant discs. Also, unlike a powereddown hard disk drive, a running RAID system can be configured to conduct routine backups to tape archives,
which can be stored off-site. This is a useful data recovery backstop in the event of a disaster, such as a floodor fire at evidence storage location. Indeed, the implementation of secure RAID evidence storage appears
to adhere to the National Institute of Justice’s Office of Justice Programs recommendation that investigatorspreserve evidence “in a manner designed to diminish degradation or loss.” DEPARTMENT OF JUSTICE OFFICEOF JUSTICE PROGRAMS, NATIONAL INSTITUTE OF JUSTICE, CRIME SCENE INVESTIGATION: A GUIDE FOR LAW
ENFORCEMENT (2000).
Moreover, a RAID storage system would save space in crowded evidence storage rooms and simplify
the process of locating evidence when it is requested. A RAID system would reduce the necessity of having
shelves stacked with numerous individual hard drives, each containing images of media seized from different
subjects. Forensic images could be stored in folders corresponding to investigation name and number,subject name, and search location, making it easier to locate desired images when they are requested byprosecutors.
When the time comes to use the image at trial, forensic examiners would copy the image back to a
hard drive and verify that the hash is unchanged. Hash validation after the image is transferred onto the
RAID will ensure that the image stored on and ultimately recovered from the RAID is no different fromthe original data that was seized. Because it would rely on the already approved hash validation process, a
RAID-based storage system should not undermine the authenticity or reliability of the forensic image that iseventually offered into evidence at trial.
Just like any piece of evidence, care would need to be taken to keep the RAID in a secure setting, suchas in a locked, limited access server room with no Internet connections. Logging software could be added to
the RAID to keep track of access to the virtual evidence lockers stored on it, and forensic images could be
stored in password protected virtual lockers on the RAID. And of course, testing should be performed before
a RAID–based evidence storage system is put into use.
Prosecutors interested in these and other computer forensic issues and techniques may register for
the Computer Forensics for Prosecutors Course taught by CCIPS at the National Advocacy Center. The
Computer Crime and Intellectual Property Section and the Cybercrime lab is also available to AUSA’s for
consultation on computer forensic and other technical investigative matters by calling (202) 514-1026. Manyother resources are available on our section’s public website, www.cybercrime.gov. In addition, anyone in
the Criminal Division or US Attorneys’ Offices can find additional resources on our new intranet site, CCIPS
Online. Just go to DOJ Net and click on the “CCIPS Online” link.

45

139TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

THE CURRENT SITUATION AND COUNTERMEASURES TOCYBERCRIME AND CYBER-TERROR IN THE REPUBLIC OF KOREA
Junsik Jang*

I. INTRODUCTION
The Republic of Korea (hereafter: Korea) is a democratic country with a population of 48.46 million(2007). Korea’s stance as a powerhouse in terms of information technology is demonstrated by its vast
information communication technologies (ICT) production and exports, development of cutting-edge
technology, and also the wide use of Internet and mobile telecommunication devices within the country.
When looking at ICT-related statistics and changes which have occurred in Korean society between 2001
and 2007, the number of broadband Internet subscribers increased from 7.81 million to 14.71 million, while
the number of Internet users also increased from 24.38 million to 34.82 million. The number of e-commercetransactions also grew between 2003 and 2006, from 7.2 million transactions to 12.8 million. These figuresdemonstrate that Korea is one of the most successfully connected places on earth, made possible by thestrong driving force of the government.
However, the overwhelming number of cybercrimes and security incidents compared to those ofneighbouring countries contrast sharply with the positive aspects of Internet usage in Korea. Some may
consider the undesirable phenomena inevitable costs accompanying the acceleration of an informationsociety. In contrast, others may attribute these undesirable phenomena to the lack of social and legal
control of online activity in Korea. No one reason can explain the situation. Without waiting to identify thecause, the Korean authorities have made a great effort to tackle cybercrime and other attacks, including
the threat of cyber-terror. Here I briefly show the current situation and historic changes in cybercrime withcountermeasures to prevent, deter, respond and investigate.

II. THE CURRENT SITUATION OF CYBERCRIME AND CYBER-TERROR IN KOREA
A. Cybercrime Statistics
Korea is one of the most wired countries in the world, but unfortunately statistics show that a variety
of cybercrimes also feature in the Korean online environment. Since the Korean National Police Agency(hereafter: KNPA) publicized the first cybercrime statistics in 1997, cybercrime grew at an alarming rate to2005, as seen in Figure 1. In 2006, we finally saw a decrease in cybercrime for the first time, although thiswas reversed in 2007.

* Professor/Senior Inspector, Department of Police Science, Korea National Police University, Republic of Korea.

46

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Figure 1: Number of cybercrimes reported to the Korean Police

100,000
90,00080,00070,00060,00050,00040,00030,00020,00010,0000

general type occurrence

1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007

cyber-terror typeoccurrence

Source : KNPA, March, 2008.

The KNPA has divided cybercrime into two categories;“Cyber-terror Type Crime” refers to attacks against the information network per se such as hacking,mal-ware distribution and Denial-of-Service (DoS) attacks. “General Cybercrime” is crime that uses
computers and networks as crime instruments, for example, Internet auction fraud or online childpornography distribution. Each type has several sub-types reflecting the diversity of cybercrime.
Figure 2: Cybercrime occurrence by type

35000
30000
25000

hacking and virus

20000

internetfraud
cyber violence

15000

illicit service

10000

software piracy

5000

others

0
2003

2004

2005

2006

2007

Source : KNPA, March, 2008.

The two most prevalent types of cybercrime are hacking/viruses and Internet fraud. More than half ofboth types of cases are directly related to online games. Why are there so many cybercrimes? There area few apparent reasons: digital item trade, anecdotal lack of interest in cyber security, and state-of-the-art
Internet infrastructure have all fascinated cyber criminals. Market share of digital items is estimated at morethan one billion US dollars in Korea. To improve the situation, legislation prohibiting transactions of virtualmoney for on-line gambling was activated in 2006.

47

RESOURCE MATERIAL SERIES No.79

B. Trends and Issues in Cybercrime
Statistics and cases demonstrate some long-term changes in cybercrime trends. Other changes mightoccur in a few cases only. These are not exhaustive, but rather representative, examples (cases will be
provided separately if appropriate):
•
•
•
•
•
•
•
•
•
•

Traditional criminals are hiring tech-savvy cybercriminals internationally. Organized criminal groups
have recognized the extent to which they can exploit Internet technology to fulfill their traditional
criminal motivations. Their harnessing of technological knowledge makes investigation much harder;
Mobile Internet devices are replacing Internet cafés as cybercriminals’ preferred method of securing
their anonymity;
Collective opinions form on the Internet, stimulate government and are continued into physicalmovement;
Cyber rumours and bullying threaten innocent victims;
Online banking equipped with Public Key Infrastructure was revealed not to guarantee perfectsecurity of customers;
Korea is losing its negative reputation as one of the greatest sources of cyber attacks worldwide;
We need to find a solution to the problem of Chinese hackers who speak Korean and target Koreans;
Identity theft is at the top of the list of serious cybercrimes in Korea. In recent cases, the personal
details of more than 10 million people were stolen;
Virtual Private Networks for secure communications provide criminals with a cybercrime heaven;
The majority of criminals are not teenagers.

C. Cyber-terror in Korea
Although the term “cyber-terror” has been in use since the late 1990’s, vagueness of the concept still
remains. Distinguishing characteristics of terror are the violent manners and socio-political intentions of theperpetrators. Even though some attacks seemed to be explicit cyber-terror, the two features are not easy torecognize, even for experts in a specific cyber attack. Rather, nowadays, cyber-terror seems to be noted inregard to the information security of governmental and other critical infrastructures.
Table 1: Number of security incidents reported to the National Intelligence Agency

Organization typegovernment
local administrations
research institutes
education institutes
affiliated organizations
others
total

Total
625
3,827
198
2,148
706
84
7,588

MalwareInfection

Zombie

498
3,583
145
1,504
448
16
6,194

29
94
20
513
85
26
767

Impaired
Defacement or Leaked
Data
21
55
111
24
8
19
91
18
143
26
5
34
379
176

Others
22
15
6
22
4
3
72

Source: the NIA, April, 2008.

According to the White Paper on National Information Security 2008 by the National Intelligence Agency
and Korea Communications Commission, the number of cyber incidents reported in the public domain in2007 was 7,588 which almost doubled from 4,286 in 2006. The main source of the incidents is infection by
Internet worms and viruses.
In contrast, the number of hacking incidents in the private sector which were handled by the Korea
Information Security Agency was 21,732. This was a decrease of 18.9% in comparison to 2006.

48

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Figure 3: Number of security incidents reported to the Korea Information Security Agency
21,73226,808Total
defacement

2,293
3,206

other hacking

2,360
4,570

unauthorized access including
attempts

4,316
3,711

2007 Total
2006 Total

1,095
1,266

phishing zombie

11,66814,055spam relaying
0

10,00020,00030,000Source: the KISA, April, 2008.

Ten important issues concerning cyber security in Korea were selected by the National Intelligence
Agency as follows:
•
•
•
•
•
•
•
•
•
•

increase in distributed denial-of-service to intimidate for profit;
promotion of electronic passports containing biometric information;
incompliance between Windows Vista and domestic security solutions;
appointment of the first private information security products accreditation body;leakage of personal information from public organizations and huge Internet Service Providers;issued certificates for public-key infrastructure exceeded 15 million;
rapid increase in mobile phone spam;
User Created Content (UCC) became a new security threat;
Universal Serial Bus (USB) vulnerability is severe;
obstinate Voice Phishing.

III. THE LEGAL RESPONSE TO CYBERCRIME AND CYBER-TERROR IN KOREA
A. Overview of the Criminal Justice System of Korea
The Korean legal system combines some elements of European civil law systems, Anglo-American law,and classical Chinese philosophies. Constitutional power is divided into three branches; the administration,
the legislature and the judiciary. The constitution provides for an independent judiciary.
The judiciary is composed of the Supreme Court, the High Courts, the District Courts, the Family Court,
and the Branch Courts. Since 1988 constitutional challenges go to the Constitutional Court. To become alawyer in Korea, one must pass the Judicial Examination and complete a two-year training course at the
Judicial Research and Training Institute.
The Ministry of Justice belongs to the administration. Prosecutors, who have the authority to investigate
criminal cases, belong to the Ministry of Justice. As of March 2008, the total number of prosecutors in Korea,
which is growing year by year, is approximately 1,655 and they are assisted by a staff of about 7,524 including
investigators, administrative clerks and secretaries. Prosecutors’ offices correspond to the counterpart court.
Under the Criminal Procedure Act, the judicial police conduct investigations under the supervision ofprosecutors. When most crimes (more than 90%) are recognized, however, the judicial police usually initiate
and conduct the investigation. The judicial police consist of general judicial police, dealing with criminal

49

RESOURCE MATERIAL SERIES No.79

cases in general and special judicial police, in charge of cases specifically related to railway facilities, forests,
fire fighting, the sea, etc. General judicial police belong to the Korean National Police, which has 97,700 fulltime employees (sworn-officers and civilian), and about 47,000 auxiliary police, who fulfill their constitutional
duty of military service by assisting police. According to the White Paper on the police by the KNPA, thenumber of crimes reported to the police was 1,719,075 in 2006, including 1,073 murders and 4,838 robberies.
In applying the universality principle to cybercrime, the major international treaty that may become thethreshold of domestic laws is the Council of Europe Convention on Cybercrime of 2001. Korea has yet tosign the Convention on Cybercrime, but governmental organizations have begun discussing it.

B. Substantive Cybercrime Laws
Currently, Korea provides for the punishment of cybercrimes in the Criminal Act concerning traditional
crimes committed by means of a computer, and in various other laws. The most relevant of these are the
Act on the Promotions of Information and Communications Network Utilization and Information Protection,etc. (hereafter: Information and Communications Network Act) and the Information and Communications
Infrastructure Protection Act, which are special additions to the Criminal Act.
Besides, the following laws are also relevant: the Framework Act on Electronic Commerce and theDigital Signature Act, concerning e-commerce; the Act on the Punishment of Sexual Crimes and theProtection of the Victims Thereof, concerning cyber-sexual harassment; the Act on the Protection ofJuveniles’ Sex, etc., concerning child pornography; the Copyright Act or Computer Program Protection
Act, concerning on-line copyright infringement; the Act on Promotion of the Game Industry, and the Act on
Special Cases Concerning Regulation and Punishment of Speculative Acts, etc., concerning on-line games.
1. Criminal Act (revised in 1995)
The Criminal Act was revised in 1995, accommodating social needs and the regulation of emerging typesof crime. Most provisions, except those regarding computer fraud, overlapped with those of the Information
and Communications Network Act and the sentences defined in the latter are heavier, so the overlapped
provisions are not applicable in most cases. Some features of the Act are:••••

Manipulating public electromagnetic records (Art. 227-2, max 10 years) and private electromagnetic
records (Art. 232-2, max five years or fine of up to 10 million won);Computer fraud (fraud by means of computers): Art. 347-2, max 10 years or fine of up to 20 million won;Computer interference with business: Art. 314.2, max 5 years or fine of up to 15 million won;
Impairment of electromagnetic records: public records (Art. 141.1, max 7 years or fine of up to 10
million won); any other records (Art. 366, max 3 years or fine of up to 7 million won).

2. Information and Communication Network Act (revised in 2008)• Unauthorized access: Art. 63.1.1 and 48.2, max three years or fine of up to 30 million won;○making such attempts is also punishable;

50•

Transmitting or distributing malicious programmes: Art. 71.9 and 48.2, max five years or fine of up
to 50 million won;○
writing malicious programme per se is not punishable;•

Denial-of-service attack (sending a large volume of signals or data for the purpose of hindering thestable operation of a network): Art. 71.10 and 48.3, max five years or fine of up to 50 million won;•

Cyber-pornography (distributing, selling, renting, or openly displaying lascivious codes, letters,sounds, visuals, or films through information and communications network): Art 74.2 and 44.7.1.1,
max one year or fine of up to 10 million won;•

Cyber-stalking (repeatedly sending words, sounds, letters, visuals, or films inciting fears anduneasiness to any other person through information and communications network): Art 74.3 and44.7.1.3, max one year or fine of up to 10 million won;

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS•

Others:○cyber-defamation with alleging facts (max three years or of up fine to 20 million won) or
openly alleging false facts (max seven years or fine of up to 50 million won);○transmission of advertisement information for illegal acts (max one year or fine of up to 10
million won);○collecting e-mail addresses without permission by technical means (max one year or fine of up
to 10 million won);

C. Procedural Cybercrime Laws
The attitude of the judicial system in the application of law to a new legal issue is to interpret current
law or to amend or add new provisions to meet emerging needs. Digital evidence is the most widely usedterm to depict the new type of evidence consisting of zeros and ones, which signify the greatest challenges
concerning criminal procedural law in cybercrime investigations and in court.
Legitimacy of the procedures followed during the collection of digital evidence is the top issue. The mostsignificant method of doing this is a search and seizure operation as defined in the Criminal Procedure Act
which is the foundational law for all criminal procedure. There is almost no provision allowing for the statementof digitalized evidence; therefore, the search and seizure issue is basically an interpretation problem. Special
procedures, including wiretapping electronic communication to collect specific types of data from specificsources, are defined in a few different laws as outlined below. In court, there are also numerous legal issues.
However, the legal issues concerning digital evidence have been challenged in only a few cases. That is
why many investigators are still confused as to how to apply the law in their cases.
1. Search and Seizure
Search and seizure is one of the most important procedures used to acquire evidence. For the search andseizure of electromagnetic records stored in a computer, the cybercrime investigative organizations should
first obtain warrants under the legal conditions in force, just like they do in cases of other crimes, unlessthere exists an exceptional situation, including circumstances in which an emergency arrest is appropriate.
Therefore, in response to the Constitution, the suspicion, the scope and the place of the search, as well as thetarget of the seizure, etc., must be specified by the search and seizure warrant for electromagnetic records.
2. Telecommunication Information
The Telecommunications Business Act (revised in 2006) regulates the procedure of acquiring account andother basic information from the Telecommunications Business Operator. The objects of the request include:
•
•
•
•
•
•

Names of users;
Resident registration numbers of users;
Addresses of users;
Phone numbers of users;
IDs (referring to the identification codes of users which are used to identify the rightful users ofcomputer systems or communications networks);
Dates on which users subscribed or terminated their subscriptions.

The request should be made by way of a written document of a court, a prosecutor or the head of theinvestigation agency.
3. Transaction Records
Transaction records are defined as “communication confirmation data” in the Protection of Communications
Secrets Act (revised in 2008). An investigative authority may ask any operator of the telecommunications
business for the perusal or the provision of the communication confirmation data. The records oftelecommunications falling under any one of the following items are communication confirmation data:••••

The date of telecommunication by subscribers;
The time that the telecommunication commenced and ended;
The number of outgoing and incoming calls, etc. and the subscriber’s number of the other party;
The frequency of use;

51

RESOURCE MATERIAL SERIES No.79•••

The computer communications or Internet log-records relating to facts of using the telecommunications
services by the users of computer communications or the Internet;
The data on tracing a location of information communications apparatus connecting to the information
communications networks;
The data on tracing the location of connectors capable of confirming the location of information
communications apparatus used to connect with the information communications networks.

When an investigative authority officer asks for the provision of the communication confirmation data,
he or she must obtain permission from the court, with a document. If urgent grounds exist, he or she shallobtain permission immediately after asking for the provision of the communication confirmation data.
Provision of real-time records is executed by the same articles in practice. Asking other parties, including
non-public information holders, for the same type of data is executed under search and seizure clauses.
The co-operative obligations of operators of telecommunications businesses for wiretapping and acquiringtransaction records and the minimum three-month mandatory period of keeping transaction records aredefined in law, but operators are not compelled by any other measure to follow the necessary provisions.
4. Wiretap
Wiretapping telecommunications is strictly confined by the Protection of Communications Secrets
Act (revised in 2008). Most importantly, wiretapping can be permitted by a court only for prevention andinvestigation of serious crimes enumerated in the law. There is no typical cybercrime included in theserious crime types. Therefore, in practice, monitoring, surveillance, or packet capturing for the purposes ofcybercrime investigation must be conducted without accessing the content of the communication.
5. Digital Evidence in Court
Electromagnetic records seized by warrant are not made readable until printed. The admissibility of therecords thus printed, if submitted as evidence, may be questioned. There is no written regulation on thismatter, but the Supreme Court adjudicated on a recent case requiring high level reliability of the programme
used, the person who dealt with the evidence, the chain of custody, procedures, etc., to admit authentication
and admissibility of digital evidence.
Regarding the identity of the electromagnetic records and the printed document, the person who printed
out the electromagnetic records by means of a certain programme should have to testify to the authenticityof the printed document at the trial. In addition, to the extent that the electromagnetic record is deemed
identical to the printed document, the latter should be deemed original.
On the other hand, if the document that is made visible and readable by printing the electromagnetic
records is used as evidence of a crime, this document may be deemed statement evidence made by
extracting a human idea through an electronic method, i.e., hearsay evidence without cross-examination.
Therefore, the rule of hearsay evidence under Article 311 of the Criminal Procedure Act and the provisions
that follow shall be applied in determining the admissibility of such documents.

IV. THE COUNTERMEASURES TO CYBERCRIME AND CYBER-TERROR IN KOREA
A. Framework for National Cyber Security
The Framework for National Cyber Security has been formulated not by design, rather it has developedby trial and error. A few critical cases, including Slammer Worm hits in 2003 which caused catastrophic
interference to country-wide Internet connections, and alleged organizational attacks targeted at major
governmental networks found in 2004, served as a crucial momentum to reform past frameworks.
The main focus of the reforms was to integrate distributed resources and capabilities within a single
framework and make strict ties between the spots to draw a bigger picture. The current National
Cyber Security can be divided into three sub-systems: General Cyber Security responsibility; Critical
Infrastructure Protection systems; and Cyber Security Management systems.

52

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

B. General Cyber Security
As an extension of traditional national security management, each governmental organization is
responsible for its own assets and affiliated organizations. The National Intelligence Agency Act and theRegulations on Intelligence and Security Affairs Co-ordination (Presidential Decree No. 16211) are legal
grounds for this responsibility.
C. Critical Infrastructure Protection
In 2001, Korea enacted the Act on Information and Communications Infrastructure Protection to makea framework to protect highly important networks such as military, communications, finance and so forth.
Once designated, a governmental administrative organization that is responsible for the network has to form
an effective information security policy followed by vulnerability analysis and assessment. The punishments
for an attack and attempt to damage the Critical Infrastructure are more severe than those for similar actions
directed towards the other systems and networks.
Figure 4: Organization Chart for Critical Infrastructure Protection
Information and Communication
Infrastructure Protection Committee(Chair: Minister of the Prime Minster’s
Office)Incident Response
Head Quarter

Public Sector
Working Group

Private Sector
Working Group

National Intelligence
AgencyLaw Enforcement
Agencies

Ministry of Public
Administration and Security

Departments in Charge...

Ministry of Public
Administration and Security

Ministry of Strategy and
Finance

Ministry of Knowledge
EconomyTelecommunication
Companies, etc

National Banks, etc

Electricity Suppliers, etc...

Infrastructure(s)Infrastructure(s)Infrastructure(s)...

• Designating Infrastructure• Protection Planning and Execution• Prevention and Recovery

Management Institutions• Protection Responsibility• Protection Policy Making• Vulnerability Analysis andAssessment

The chairman of the Information and Communication Infrastructure Protection Committee, which directs
government organizations which manage infrastructure under its supervision, answers to the minister ofthe prime minister’s office. Once a major incident happens in any critical infrastructure, a temporal incident
response headquarters is set up. Law enforcement agencies are responsible for investigation of the incidents.
1. Cyber Security Management
A Cyber Security Management system was established to enhance mainly the capability to respond toincidents in three comprehensive parts; public, private and military. Major operations of Cyber Security
Management are:••Integration and implementation of national-level cyber security policies;
Cyber-security proactive actions;53

RESOURCE MATERIAL SERIES No.79••

Collecting, analyzing and disseminating information on cyber threats;
Emergency response, investigation, and recovery support during intrusion incidents.
Figure 5: Organization Chart for Cyber Security Management
Presidentof ROK

National Cyber Security
Strategy Council

National Cyber Security
Countermeasure
Committee

Ministry of Defense

National Intelligence
Agency(NIA)

Ministry of Public
Administration and
Security

Military Information
Warfare Response Center

National Cyber
Security Center

Internet Security
CenterMilitary Units

PublicOrganizations

Private Sector(ISP, corporate)

Among these agencies listed above, investigation is responsibility of law enforcement agencies. Presidential
Directive No. 141, the National Cyber Security Management Regulation, is the main legal source. Several
important organizations implement the policies directed by each central administrative agency.

(i) National Cyber Security Center
The National Cyber Security Center is the central point of government for identifying, preventing andresponding to cyber attacks. The NCSC is responsible for analysing cyber threats and vulnerabilities anddisseminating threat warning information.
(ii) Military Information Warfare Response Center
The Military Information Warfare Response Center is responsible for protection of military infrastructure
and response against attacks on the network.
(iii) Korea Internet Security Center
The Korea Internet Security Center is one of the divisions of the Korea Information Security Agency(KISA). The mission of the KISC is collecting information and detecting attacks, major network monitoring,
disseminating alerts, incident analysis and technical support, mainly for the private sector.
(iv) Other Specialized Organizations• National Security Research Institute: Researching and developing technologies concerning
cryptography, counter-attack, and other security technologies;• Korea Information Security Agency: Reacting to security threats properly at the national level, andproviding integrated and systematic information security services. It includes the Internet Security
Center;54

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS••

Electronics and Telecommunications Research Institute: Non-profit government-funded researchorganization that has been at the forefront of excellence on information technologies;
Financial Security Agency: Being established by entire financial industry to provide proper security
service for member corporations and customers.

2. Prosecutor as an Investigative Authority
Not only are public prosecutors responsible for prosecution, but also they have authority to investigate
all kinds of crime through investigative units within prosecutor’s offices. The public prosecutors’ offices of
Korea have a hierarchical structure consisting of the Supreme Public Prosecutors’ Office (SPO), five High
Public Prosecutors’ Offices (HPPO), thirteen District Public Prosecutors’ Offices (DPO), and forty branch
offices of the District Public Prosecutors’ Offices. Among them, the SPO and the Seoul District Public
Prosecutor’s Office have units designated for high-tech crime investigation, including cybercrime. Those
units are the High-tech and Financial Crimes Investigation Division in the SPO and the High-tech and
Financial Crimes Investigation Department in the Seoul District Public Prosecutor’s Office.

(i) Investigation by Prosecutors
Most cybercrime investigations are initiated by the police. Prosecutors conduct continuing investigation
after the transfer of each case to decide whether or not to file for prosecution. Prosecutors also conduct
investigations ex officio . The cases initiated by prosecutors are commonly distinguishable from thoseinvestigated by police. Prosecutors tend to focus on cases having a bigger social impact. Most of them are
not dynamic but static. Theft or leakage of trade secrets is a typical investigation initiated by prosecutors.
This creates natural divide in types of crime investigated by the police and prosecutors.
The High-tech and Financial Crimes Investigation Division is also responsible for co-operation
concerning Internet crime and is the contact point of the G8 24/7 High-Tech Crime Network in Korea.

(ii) Digital Forensics for Prosecutors
Digital forensics is a key element in solving a variety of types of crime today. The effectiveness of digitalforensics have been proven in a number of financial, high-tech, corruption cases. To integrate and improve
digital forensic capability, a comprehensive digital forensic lab is under construction.
3. The Cyber Terror Response Center and Cyber Policing in Korea
The Korean National Police has devoted its efforts to securing safety in cyberspace with theestablishment of the Cyber Terror Response Center in 2000, which was initiated from establishment of theComputer Crime Investigation Squad at the National Police Agency in 1997.
In regard to the outstanding activities gaining renown in the global law enforcement society, the Korean
government selected the brand name “Cyber cop NETAN ”, a compound of “Net” and “An”, meaning“safety” in Korean, as one of the renovation symbols of cybercrime investigation in 2007.

(i) Organization and Human Resources
The Cyber Terror Response Center (CTRC) is the cyber division of the Korean National Police Agency(KNPA), operated within the Agency’s Investigation Bureau. The object of the CTRC’s investigation
includes, but is not limited to, cyber attacks against the Republic of Korea and its people. It is headquartered
within the KNPA main building; at present the Center’s administrative wing commands and controls all
cybercrime investigation teams nationwide, which are installed in each of the investigation functions of the
16 provincial police agencies and 238 local police agencies. The CTRC consists of six teams:••••

Administration and Co-operation Team: Plans policies against cybercrime, training and co-ordinationof domestic and international co-operation;
Three Investigative Teams: Conduct major, national-level cybercrime investigations, including
cyber-terror type attacks;
Investigative Planning Team: Receives crime reports, analyses trends of cybercrime and plans anationwide crackdown operation on special issues;
Technical Assistance Team: Researches and develops investigative techniques, provides digitalforensic services to all law enforcement agencies through the Digital Forensic Center.

55

RESOURCE MATERIAL SERIES No.79

As of July 2008, about 900 sworn officers and civilians are exclusively dedicated to cybercrime
investigation and support. The majority are police officers working as cybercrime investigators. Amongthem, 168 officers have been recruited through a special hiring process for ICT specialists possessing
adequate academic education and work experience. Most forensic examiners in the Digital Forensic Centerare qualified civilian experts.

(ii) Cybercrime Response Activities(a) Strengthen investigation capability with professionalism
The top priority to enhance investigative capability is to encourage specialized personnel to join and train.
The CTRC provides initial training, domestic and international continuing education, and on-the-job training.
(b) Satisfying citizens by rapid responses and a strategic approach
A 24/7 complaints procedure which receives and responds to complaints through an exclusive website
and a cybercrime call centre linked with the police emergency network are being maintained. The reports
are saved in a data warehouse called e-CRM (Customer Relationship Management) and are analysed bydedicated specialists.
(c) Domestic co-operation and crime prevention activity
No fewer than 125 private enterprises and 85 organizations including academia and non-governmentalorganizations are tied with a single contact point and hotline. Educational activities and an alert system
are playing a crucial role in preventing cybercrime and reducing the number of teenage criminals. Nuricops , civilian supporters, are not only enhancing mutual understanding, but they are sometimes helpful
enough to notify police of unknown but important events on the net.
(d) International co-operation in cybercrime investigation
The CTRC has hosted several international events related to cybercrime and cyber-terrorism,
including the Annual Symposium on Cyber Terror. Instructors are frequently dispatched for international
training programmes or to deliver specially designed instruction to requesting countries. Through theInterpol network or other channels such as the Cybercrime Technology Information Network System(CTINS), the CTRC maintains a hotline with more than 110 countries. The CTRC has so far contracted aMemorandum of Understanding (MOU) with leading agencies on cybercrime investigation in 15 countries.

56

139TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

BEST PRACTICES IN CYBERCRIME INVESTIGATION
IN THE REPUBLIC OF KOREA
Junsik Jang*

I. INTRODUCTION
The Internet and the rapid deployment of information and communication technologies in recent
years have changed historic trends and practices in criminal investigation. This has created a tremendous
challenge for law enforcement to develop the capacity to confront transnational crimes and follow evidence
trails. Among the obstacles were legal, technical and operational challenges, but these are not the total
extent of the difficulties faced; rather, they have been recognized as the main issues to be addressed in orderthat law enforcement agencies are able to meet the emerging challenges of cybercrime.
When police conduct a cybercrime investigation, they are encouraged to refer to the following several
sources of regulations and guidelines:•

National Law: Both of the main procedural barriers and weapons are produced by national criminal
procedural laws. Without meeting the legal requirement, investigative activities would be consideredillicit and the admissibility of evidence acquired will be denied. As previously mentioned, several
laws regulate directly collecting cybercrime evidence, including the Criminal Procedural Act, theProtection of Communications Secrets Act and the Telecommunications Business Act.

•

International Law, Standards and Guidelines: There are such conventional frameworks as Mutual
Legal Assistance Treaties and organizations such as Interpol which are useful for international
investigative co-operation considering the borderless nature of cybercrime. Even without
compulsory regulation, pursuing international legal references is considered desirable.

•

Domestic Guidelines and Manuals: To provide practitioners with a practical reference for action, theKorean National Police Agency has developed several guidelines and manuals.

Table 1: Cybercrime manuals and guideline

Title
Cybercrime Investigation
General Manual(classified)

Scope
All members of police

Internet Tracing(classified)Cyber Investigators(mandatory)
Other police members(recommended)

Contents• Cybercrime definition, category• Preliminary Investigation• Processing Crime Scenes• Tracing, Search and Seizure• Evidence Handling• Interview and Interrogation• Checklists• Cybercrime Laws
• Foundation• Internet Protocols and Addressing• Web, e-mail, Other service tracing• Subscriber’s Line• Real-time tracking and tools* Professor/Senior Inspector, Department of Police Science, Korea National Police University, Republic of Korea.

57

RESOURCE MATERIAL SERIES No.79

Digital Evidence Analysis(classified)Cyber Investigators(mandatory)
Other police members(recommended)

Cybercrime Investigation
Techniques for Its Types(classified)Cyber Investigators

Standard Guidelines for
Handling Digital Evidence(unclassified)

Other police members(recommended)
Public (recommended)

Digital Forensics Technical Cyber Investigators
Manual(mandatory)(classified)Forensic Examiners(mandatory)• Foundation and Process• Windows Analysis• Unix System Analysis• Network Analysis• Tools (Encase, ILook, Final Forensics,
X-ways)• Hacking and Virus Investigation• Illegal Contents Distribution
Investigation• E-commerce Investigation• Complainants Counselling Q&A• Collecting Evidence• Transferring and Requesting
Examination• Evidence Analysis• Writing Reports
Standard Procedure for:• Collecting Evidence• Disk Recovery• Hacking and Malicious Code Analysis• Web Analysis• E-mail and Instant Messaging• Database• Multimedia• Crypt Analysis• Detecting Steganography• Communication Network Analysis• Mobile Device Analysis
Checklists

II. INITIAL INFORMATION GATHERING
Investigation generally begins by gathering initial information from a variety of sources. Investigators
have to understand the characteristics and develop the sources. Some victims do not want to reveal thedamage they have suffered out of consideration for their reputation and for other reasons, or even do notrecognize the damage caused to them. On the other hand, for example massive worm infection, others
report the same information repeatedly which may make investigative efforts redundant.
Information gathering to fight cybercrime should be strategic. Through their experience, the Korean
National Police Agency developed some criteria to alleviate the complexity of cybercrime which should betaken into consideration when developing info-gathering mechanisms.
•
•
•
•
•
•

Timeliness
Scope and Impact
Technical Level Needed
Proactive vs. Reactive
Machine-based vs. Human-based
Attack by Opportunity vs. Attack by Target.

A. Web-based Complaints Report and Counselling Service
To promote convenient complaint systems and to reduce processing costs associated with conventional
reporting methods, the Korean Police adopted a web-based crime report system in 1999. But, soon after,

58

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

cybercrime investigators realized that the system could be designed so as to collect more information
concerning further investigation and to find additional valuable information by analysing multiple complaints.
For this, they decided to set up an independent cybercrime report system. Because a similar idea wasapplied in business, named Customer Relationship Management (CRM), the newly launched system wascalled e-CRM when it was established in 2003.
Today, the e-CRM system is the greatest resource of cybercrime information. By simultaneously
analysing massive reports, the authorities can ascertain pattern, commonality, and level of threat. If moreproactive, intensive, and technical investigation is needed, an investigative team of the CTRC is assigned toinvestigate the case. Drawing a bigger picture with minute events is becoming more and more important.

B. Intelligence Activities
Undercover operations, decoys, and other intelligence activities are easier on the Internet whereanonymity can be secured. Keeping accounts for websites and as many other communities as possible ishighly recommended.
Traditional intelligence activities should not be neglected. People tend to trust more someone who they
have met in person rather than a total stranger. System managers and other personnel in corporations arepotential great informers in important cases. Maintaining contact points and systematic management seems
one of the most important tasks in fighting cybercrime. Gathering information from international resources
is desirable and is encouraged.

C. Honeypots
A honeypot (or honeynet) is a system or network that has intentional security vulnerabilities to gather
information and/or evidence in case of access by attacker(s). If it is not designed well, legal challenges may
arise. Therefore, a honeypot is usually built during a case investigation.
III. TRACING AND IDENTIFYING CRIMINALS
People take advantage of the anonymity of the Internet to facilitate their digital life. Abuse of theanonymity of the Internet by criminals is a predictable but inevitable dark side in an information society. The
difficulty of tracing and identifying criminals is one of the main hurdles that cyber investigators meet everyday. On the other hand, techniques used for tracing criminals can be applied to locating non-cybercriminals
as well. The Korean Police has been making efforts to develop tracing techniques and the products are being
widely used for every kind of criminal investigation.
Tracing is rarely confined to a single action, but rather a series of tedious operations. It is not odd if aninvestigator sends dozens of written requests seeking legal permission from prosecutors and courts in an
investigation. To minimize the burden, investigation should be planned strategically and tactically. In manycases, critical information can be provided by service providers, including Internet Service Providers (ISP).
Needless to say, maintaining intimate relationships is important.
Unfortunately, getting helpful information from service providers is frequently difficult for many reasons.
An investigator needs technical or human skills to overcome such difficulty. Experienced investigators in
the CTRC who know the possibility and the limitation of each technique are available to answer questions
concerning tracing matters.

A. Basic Communication Information given by Service Providers
Legal procedures were explained in the previous paper. It usually takes more than a day to complete thewhole process unless there is an emergency situation. That is why time management is important. Otherwise,
cybercrime investigation will be a chain of requests for communication information with a risk of the case failing.
The list of service providers is available for police officers with the help of their own collaborative colleagues.
Some service providers have implemented a real-time notification scheme via an investigator’s mobile
phone or closed webpage to provide the information possibly containing the cell location of a mobile phone,log-on and log-off status, IP address, etc.

59

RESOURCE MATERIAL SERIES No.79

B. Subscriber’s Network Service
To ultimately discover the location and identification of a target, cyber investigators often have to get a
subscriber’s information from the Internet Service Providers (ISPs) because many users access the Internet
through a subscriber’s network service. The possibility of getting information from an Internet Service
Provider depends on the type of service, and the logging policy. Sometimes investigators find out thephysical location they want to know without further information, because the ISPs are not helpful without
proper logging. The variety of services makes it difficult. Today, rapid propagation of mobile Internet use is a
critical issue. Table 3 shows the past and present subscriber’s networks services.
Table 2: Subscriber’s network services in Korea

Type
Wire SNS

Service

Usage

Serial Line Internet Protocol/Point toPoint Protocol (SLIP/PPP)

Obsolete

Integrated Services Digital Network(ISDN)

Obsolete

Asymmetric Digital Subscribers Line(ADSL)

PrevalentPossibility of Tracing by
ISP’s information
Very HighVery Low
Very HighNot Available
Depends on ISPs’authentication method
Very High or Low

Very high Data rate Digital
Subscribers Line (VDSL)Prevalent

Low

CABLE

Prevalent

Depends

Power Line Communication (PLC)

Obsolete

N/A

Not available
Wireless SNS Wireless Local Loop/Broadband
Wireless Local Loop (WLL/BWLL)
Mobile SNS

Satellite SNS

Not PrevalentHigh

Wireless Local Area Network (WLAN)

Prevalent

Depends on circumstances

IS-95ABC/
Broadband Wireless Local Loop
(IS-95ABC/EVDO)

Decreasing

Circumstantial

Wireless Broadband Internet(Wibro)Increasing

High Speed Downlink Packet Access(HSDPA)Not prevalent
Rarely usedHigh

C. Internet CafésOnce the target of a trace action can be identified by an online user account or nickname, there is apossibility to capture the suspect before he or she leaves the Internet café. It is effective when real-timetracking is available. Fortunately, the Korean National Police cover the entire country and a dispatch systemusing police radio make it possible for the responders, typically patrol officers, to reach any Internet Café
within 10 to 15 minutes. The fact that this really works has been proved repeatedly, including a case of
apprehension of a bank robber who gambled online in an Internet café after committing the robbery.
Otherwise, investigators may find out other clues through examination of the PC used, witnesses, etc.
Cyber investigators sometimes forget the importance and potential of physical traces. Traditional traceevidence such as hair, print and fiber may have to be collected for further investigation. Investigators also
have to be cautious that many PCs in Internet cafés are equipped with hardware or software-based hard disk
recovery tools requiring more careful treatment.

60

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

D. IP Laundry
Criminals want to be shielded behind computers to block tracing back by investigators. Since a computeris identified by an IP address, blocking is often called IP laundry. IP laundry is more common for averagecriminals and this is a universal problem in law enforcement. There is no perfect criminal haven, but,depending on the technique used for IP laundry, some tracing methods are extremely difficult to adopt andvery time-consuming. Basic IP laundry techniques are categorized as follows:•

IP concealing: Hides the existence of original systems used by a perpetrator by a detour using anintermediate system through a specific Internet service such as proxy, secure shell, socks, VPN,
remote control, and so on;•

IP forgery: Changes source IP address in packets to conceal and deceive origin. Address Resolution
Protocol (ARP) spoofing is usually implemented to intercept communications, called sniffing, butalso can be used to hide origin;•

Domain Name System (DNS) altering: Does not conceal or change IP addresses of the source
computers. Instead, it often changes the source computers themselves, typically zombies, by theusing of the functionality of dynamic DNS.

Techniques to defeat IP laundry vary. Some of them are not intentionally documented in the manual topreserve their operational effectiveness. Proper consultation may be needed from a technical support of the
CTRC.

E. Tracing Method for Individual Internet Services• E-mail: Due to prevalent use of header forgery, mail server investigation and proactive e-mailtracking is frequently used.
•

P2P: The CTRC provide automated well-known network-based P2P tracking software.

•

Website users and operators: Should be tactical enough, especially when tracking operators.

•

Web based short message service (SMS) sender: Investigators need a full understanding of theservice mechanism. It is normally a tedious procedure.

•

Mobile device holder: If a mobile device is chosen by a criminal to avoid tracking, locating it usually is
extremely vexing work. Some software and hardware are available for this purpose from the CTRC.

IV. PRESERVING AND COLLECTING EVIDENCE
Scene processing has to be completed by experienced and qualified investigators or examiners, butthey are not always available. In any case, coping with the standard procedure and technique proposed isimportant. Recently proposed standard procedure for cybercrime scene processing is defined in the Digital
Forensics Technical Manual 2007. This standard is applicable for typical digital evidence collecting situations
concerning computer systems and peripherals:•

Photography and Sketching: Taking pictures of the front and rear shots of object system, peripherals,monitor and other necessary images;•

Volatile Information Gathering: Volatile information needed is enumerated in the manual. The Cyber
Terror Response Center provides automated tools in a CD called “Podomi ” (meaning police helper)
which is highly recommended if the investigator is not fully qualified to select alternatives;•

Shutting Down: The decision of how to shut a system down should depend on the operating systembeing used. Roughly, server systems follow a normal shut down process and personal computers areunplugged. The details are defined in other parts of the manual;•

Acquiring Physical Media: Seizing whole systems is principally recommended. Exceptionally, storage
media such as Hard Disk Drive (HDD) can be seized separately. In any case, system time should be

61

RESOURCE MATERIAL SERIES No.79

previously recorded in comparison to Korean Standard Time (KST);•

Labelling and Packaging: an adequate label has to be attached to each item, including case number,collector, date and time, location, specification of the item, serial number if possible, etc. HDD andother electro-magnetic media should be packed individually using proper bags or boxes;•

Documentation: Chain of custody, process of scene investigation, lists of evidence to give the owner
and a Q & A sheet should be documented and preserved.

V. DIGITAL FORENSIC ANALYSIS OF EVIDENCE
It is principle that all digital media be examined and analysed by a qualified forensic examiner, but there
are too many items that need forensic investigation and the number is rapidly increasing. Consequently,
there is an explicit gap between needs and current status. This tends to produce backlogs and sometimes
leads to field investigators abandoning requests for forensic service, which can have unexpectedconsequences. Cyber investigators are trained to examine digital evidence to some extent. Beyond that,forensic service is requested of high level police agencies.
The Digital Forensic Center in the CTRC is the biggest and the most comprehensive digital forensic
laboratory in Korea. Several provincial police agencies have digital forensic labs and the number isincreasing. The active service is listed in the Digital Forensics Technical Manual published in 2007.
However, considering the rapid change in ICT environment, the scope of service request is not confinedwithin the current service list.
Before the establishment of the DFC in 2004, forensic investigation had been conducted by investigators
who had ICT backgrounds or as a form of technical support without strict regulation. The number ofelectromagnetic media requested for forensic service was only 274 in 2005 and it increased to 2,984 in
2007. However, it is believed that the actual needs much exceeded the number of the received media,
because many requests are being refused by service providers due to the lack of resources or abandoned byinvestigators considering the current situation. Increasing media size is also problematic. The average harddisk drive size received for forensic examination was 68.33 gigabytes and increased to 89.14 gigabytes in2007. Strengthening forensic capability is one of the most urgent problems that the CTRC and cyber police
are confronting. Research on 99 sample cases showed that the average waiting period until returning theitem, that is the time used to complete a forensic request, was 3.24 days per item.
Forensic labs are required to gain accreditation from a qualified body. There are many unsettled issues
concerning digital forensic lab accreditation. The DFC is preparing to apply to domestic or international
accreditation bodies.

VI. INTERNATIONAL CO-OPERATION
Although much international co-operation does not achieve tangible output such as apprehension ofdomestic suspects, Korean investigators, especially those working at the Cyber Terror Response Center,are very proactive in responding to requests from foreign law enforcement agencies. Needless to say, it isbecause they know the importance of international co-operation and the fact that they may also need similar
help by the requesting country someday.
As a result, most of the international co-operation cases are investigated by the Cyber Terror Response
Center. If it seems appropriate considering time and difficulty, a request can be transferred to local police,
and more time will be needed to respond. Once a request is delivered to an investigator, he or she opens a
new domestic case based on the information in the request. It is possible because the majority of requests
include domestic suspect(s), victim(s), or a location where a crime was committed. For this, the request
should contain a detailed description of the case and the reason that an investigation is needed in Korea.
The most active channel for international cybercrime investigation is the International Criminal Police
Organization (hereafter: Interpol). But there are other channels which have respective strengths andweaknesses.

62

140TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

A. Mutual Legal Assistance Treaty (MLAT)
MLATs are the most powerful legal tool. In practice, however, this is rarely used for police investigationof cybercrime because of the length of time needed to complete the whole process.
B. G8 24/7 High Tech Contact Points
The G8 created in 1997 a new mechanism to expedite contacts between countries to enhance andsupplement traditional methods of obtaining assistance in cases involving networked communications andother related technologies. The system is maintained by the Supreme Prosecutor’s Office in Korea and is
not usually available for the police. Because the majority of cybercrime investigations are conducted by thepolice, the usability of the mechanism is low.
C. Interpol
Interpol, with 186 member countries, is the most commonly used channel for international cybercrime
investigation co-operation in Korea. Hundreds of cases are dealt with annually through the Interpol channel.
The National Central Bureau, a single contact point in each member country, possesses a 24/7 network andis staffed by highly trained officers.
However, the effect of co-operation through the Interpol channel seems limited because it is not
obligatory, but voluntary, and is conducted without a legal basis which would enable the use of more effective
methods, including the exchange of physical evidence. In addition, inadequate knowledge of technical matterson the part of the officers of the National Central Bureau often hinders communication between investigators.

D. Liaison Officer (24/7 Contact Point)
To address international co-operation matters, the Cyber Terror Response Center has designated liaison
officers. They also maintain the National Central Reference Point (NCPR), proposed by Interpol, which isdesigned to counteract the disadvantage of traditional co-operation by the National Central Bureau. Typically,
once an initial request is delivered to NCB, ongoing co-operation can be conducted via the NCPR throughe-mail and/or telephone.
E. Cybercrime Technology Information Network System
The Cybercrime Technology Information Network System (CTINS), operated by the Japanese police,
is a network system connecting law enforcement agencies in the Asia-Pacific region. The CTINS is agood instrument to share technical information concerning cybercrime, but is rarely used for specific caseinvestigations.
F. Human Networking
Sometimes, investigators prefer contacting counterparts directly to exchange more detailed information
faster. Once acquainted, this unofficial networking would be more smooth but still powerful. The CTRC
encourages its investigators develop its human networks.

63

139TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’
PAPERSVISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

THE CRIMINAL JUSTICE RESPONSE TO CYBERCRIME
Elcio Ricardo de Carvalho*

I. INTRODUCTION
The objective of this paper is to be a comprehensive discussion of the current situation in Brazil
regarding the 140th Course’s main theme, “The Criminal Justice Response to Cybercrime”, following theguidelines provided by the course advisers.
Whenever mentioned, the Convention on Cybercrime refers to the Convention on Cybercrime of theCouncil of Europe (2001) (ETS 185) .

II. ISSUES AND MEASURES CONCERNING CYBERCRIME INVESTIGATION
A. Initial Information Gathering
The Brazilian Federal Police created an e-mail box to which any Internet user can send notices aboutcybercrimes. However, the great volume of messages, combined with the generally poor quality of theinformation itself (for instance, not including enough data to allow the identification of the perpetrator
or reporting actions not defined as criminal offences under Brazilian law), has made this communication
channel fall short of its intended objective.
Some non-governmental organizations dedicated to combating child pornography take a similar approach,triaging the notices received and complementing it with field work, passing this higher quality information tolaw enforcement. Although the law enforcement agencies are allowed to be more proactive, in general theylack human resources to do this kind of job. Moreover, Brazilian law limits their actions to some degree. For
example, if an agent enters a chat room pretending to be a teenager and a paedophile tries to seduce thispersona, he cannot be charged based on this action because Brazilian law considers it an impossible crime,i.e., someone trying to seduce a teenager that does not exist. Or if, in an Internet forum, an undercoveragent asks for and receives child pornography material, the sender cannot be charged for the sending. Since
it was requested by the agent, it can be argued that the situation was a set-up.
In spite of the difficulties presented, some initiatives to actively patrol cyberspace have been successful,
such as the monitoring of peer-to-peer networks, which will be discussed in more detail later is this document.

B. Tracing and Identifying the Criminal
In the process of tracing the origin of a cybercrime and trying to identify the perpetrator, major obstacles
arise when it comes to getting access to information maintained by service or access providers, such as
connection logs. These obstacles have two different origins, according to the location of the providers:
1. When the Provider is in Brazil
Providers in Brazil are not obligated by law to keep any kind of connection logs. Also, due the lack ofproper legislation, most providers deem connection logs and subscriber information to be protected byprivacy laws, therefore requiring a court order to disclose this type of information.
The combination of this legal state of affairs with the lack of promptness by the Brazilian judicial system
often leads to situations where, when the court order finally reaches those responsible for the information,
the short period of time during which the providers decided to keep the logs has already elapsed.
* Federal Criminal Expert First Class, Technical-Scientific Directorate, Federal Police Department of the Ministry of Justice, Brazil.

64

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

In many cases, even when the first contacted provider is able to supply the information in a timely
manner, the investigation path leads to another provider, restarting the whole legal process to obtain thedata. For example, an IP address obtained from a webmail service provider has to be correlated to a physicaladdress by the access provider, and this request will require a different court order.
2. When the Provider is Located outside Brazil
Although many of the major service providers, such as Microsoft and Google, have offices in Brazil, theyusually claim that their central offices, located in foreign countries, are the real retainers of the requested
information. Hence, to obtain the required logs, the investigator has to go through processes as established by
Mutual Legal Assistance Treaties or petition a foreign court by means of a Letter Rogatory. According to practicalexperience, both alternatives take longer than is acceptable in investigations dealing with ephemeral information.
A major step to overcome such obstacles was taken in July 2008, when Google’s Brazilian office signed
an agreement with the Public Attorney’s Office in São Paulo, assuming the responsibility for, among others,
accepting court orders from Brazilian judges regarding information owned by Google’s central office. This
commitment should make smoother investigations involving Google’s two most popular services in Brazil,
namely GMail, a webmail service, and Orkut, a social network.
Microsoft, another big player in the Brazilian Internet market with services such as MSN Messenger
and Hotmail, has a tradition of accepting and forwarding to their central office the court orders they receive,
even though, not having signed any formal document and not being bound on this subject by Brazilian laws,
they reserve to themselves the right to decide what requests will be complied with.

C. Preserving and Collecting Evidence
1. Expedited Preservation of Stored Computer Data
Currently, there are no specific laws in Brazil regulating expedited preservation of stored computed data
as defined by Article 16 of the Convention on Cybercrime.
The Brazilian Internet Management Committee (“Comitê Gestor da Internet no Brasil ” in Portuguese),an entity composed of government, private sector and academic community representatives, has issued arecommendation to Internet Access Providers to store access and connection logs for at least three years.
This recommendation does not have the force of law and there are no penalties for providers that do notcomply with it.
Also, the Brazilian Association of Internet Service Providers, ABRANET, has created a self-regulation
code that stipulates six months as the minimum period of time the service providers should maintain theaccess logs. As a recommendation from the Brazilian Internet Management Committee, this directive does
not have the force of law.
As a consequence, the Brazilian law enforcement agencies have no means by which to enforce or require
the preservation of stored computed data. They have to rely on the individual policies of each service oraccess provider.
2. Expedited Preservation and Partial Disclosure of Traffic Data
The expedited preservation and partial disclosure of traffic data, as defined by Article 17 of theConvention on Cybercrime, suffers in Brazil from the same legal deficiency described in the previous
section of this paper. As a matter of fact, for the purpose of preservation and disclosure, the current legal
situation makes no distinction whatsoever between traffic data and generic stored computed data. Usually acourt order is necessary to obtain this type of information.
3. Production Order
There are no provisions in Brazilian law allowing a law enforcement agency to issue an administrative
order requiring a person or a service provider to submit computer data or subscriber information, in theform described by the Article 18 of the Convention on Cybercrime. Moreover, some interpretations of thecurrent privacy laws consider this kind of information to be protected, requiring a court order before it canbe disclosed to the investigator.

65

RESOURCE MATERIAL SERIES No.79

Consequently, when it is necessary to obtain such data, the investigator has to go to court and use thesame legal tools designed to get hold of traditional, non-cybercrime related, privacy-protected information.
4. Search and Seizure of Stored Computer Data
The empowerment to search and seize stored computer data, as stated by Article 19 of the Convention
on Cybercrime, is, to some extent, incorporated into the Brazilian legal system.
While the current laws do not differentiate between stored computer data and data contained on nondigital media, an investigator can obtain a court order to access a computer system, a storage medium andthe data stored therein, as required by paragraph 1.
However, and precisely because of the absence of differentiation mentioned above, court orders toaccess computer systems usually refer to the physical locations where the computer systems are installed.
Consequently, if during a search it is found that the data sought is stored on another computer, located on adifferent site but accessible from the initial system, it is necessary to obtain another court order for this newcomputer system. There are no provisions for expeditiously extending the search to the remote system, as
required by paragraph 2.
The seizure of computer data, as described by paragraph 3, is in effect a consequence of the courtordered search and is usually authorized by the same warrant. Nevertheless, the power referred to in subparagraph (c) is not taken into account by Brazilian law due the lack of definition of stored computed dataand its integrity. Also, the command to render inaccessible or remove computer data, as described in subparagraph (d), is usually contained in a proper court order directed to the owner of the computer system
wherein the data is resident. There are no explicit provisions for the authority conducting the search to
execute those actions.
More importantly, paragraph 4, “(…) to order any person (…) to provide, as is reasonable, the necessary
information”, may directly conflict with a constitutional principle in Brazil and many other countries: theprivilege against self-incrimination (Nemo tenetur se detegere ). Although it would be a very useful powerfor investigation, and in some cases the only way to get access to vital information, it can be foreseen that in
Brazil deep cultural and legal changes would be required to comply with paragraph 4, especially taking into
account the conditions and safeguards detailed in Article 15.
5. Real-Time Collection of Traffic Data
The real-time collection of traffic data, as defined by Article 20 of the Convention on Cybercrime, does
not exist in the Brazilian legal system. Furthermore, the most common interpretation of the law considers
traffic data to be protected by privacy laws. For all purposes, it is as hard to obtain as the content data itself.
Also, the text of paragraph 1 (b), “compel a service provider, within its existing technical capability ” leads
to some practical issues, discussed in depth in the next section.
6. Interception of Content Data
The interception of content data is probably the most sensitive issue in cybercrime investigation. Not
only must its implementation always be weighed against the seriousness of the offence and the right toprivacy, but, as the technology evolves and the information and communication technologies become morewidespread, the interception of content data tends to become the only possible method to obtain vital
information to support the investigation, prosecution and adjudication of cybercrimes.
In Brazil, the laws created to administer the interception of telecommunications’ content seem to havetaken into account only classical telephonic communications. Nevertheless, communication via computer
systems is mentioned in the law, but the legislature did not bear in mind the fundamental differences
between the interception of voice and the interception of computer data.

(i) Complexity
The interception of computer data in a network like the Internet is several orders of magnitude more
complex than the interception of regular phone lines. The communication between two given points can take66

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

multiple different routes and involve any number of network providers around the globe, each one of themcapable of intercepting an unencrypted communication.

(ii) The Nature of the Data
While phone communications are usually in the form of audible sounds, the computer data interceptedon a network necessarily require additional processing and possibly the help of third parties to extract the
information from the raw data. In fact, the interception itself typically is only a minor part of the problem.
For example, when dealing with encrypted Voice over IP (VoIP) traffic it may be necessary to obtaincryptographic keys from the VoIP service provider in order to extract the audible information from theintercepted data stream. Or the rendering of some kind of content, such as multimedia applications, may be
dependent on the knowledge of proprietary algorithms developed by private companies.

(iii) The Roles of the Providers
In a conventional landline, the provider of the service (voice communication) is usually also the providerof the infrastructure (a pair of copper wires). The same does not apply to Internet communications, where
the target of an investigation can utilize any number of combinations of services (e-mail, VoIP, InstantMessaging, etc.) and infrastructure providers (Wi-fi, ADSL, etc.), making it harder to determine who should
be responsible for implementing the interception.
Also, with the increasing complexity of the services, the infrastructure providers may not be able
to properly intercept and deliver the desired data to law enforcement agencies. Furthermore, laws andregulations usually do not clarify how much of the additional processing required by the raw content data is
to be performed by the provider and how much is the responsibility of the law enforcement agency.
Contrary to what happens currently in Brazil, legislation dealing with interception of content data should
not be adapted from older laws drafted with classical telephone interception in mind. Not only must thepeculiarities of the computer communications be taken into account, but the legislation must enforce some
sort of technical standard to cope with those peculiarities.
Without such technical standards, a country may end up in a scenario where the service andinfrastructure providers, even when complying with a generic interception law, are delivering the required
data in a format unsuited or incompatible with the needs and resources available to the law enforcement
agencies. Here, the text of Article 20 of the Convention on Cybercrime, paragraph 1 (b), (“compel a service
provider, within its existing technical capability ”), may serve as a justification for the providers who, foreconomical or commercial reasons, do not want to invest the resources necessary to adapt their networks tocomply with a de facto standard. Good examples of technical standards for lawful interceptions are the ones
defined by the European Telecommunications Standards Institute (ETSI).
A clear definition of the roles, standards and interfaces between law enforcement agencies and service/infrastructure providers is also crucial on the subject of the admissibility of evidence gathered throughcontent interception. Unlike other types of evidence, digital evidence in general and traffic content data inparticular is not suited to post hoc validation. If not collected properly at the outset, this kind of evidence canbe easily dismissed in court.
For instance, the content of an intercepted telephone conversation can usually be validated by comparing
the recorded audio with the actual voices of the speakers. When it comes to intercepted digital data, there isno speaker’s voice to be compared with the recorded bits and bytes.

D. Digital Forensic Analysis of Evidence
The Brazilian Federal Police has approximately 150 computer forensics experts with at least a bachelor’s
degree in Computer Science or Computer Engineering, distributed among all 27 Brazilian states. Besides
specific training in computer forensics, they are police officers and undergo the same police training that all
the members of the Brazilian Federal Police do.
Currently the bulk of their workload is on the analysis of digital evidence not directly related to67

RESOURCE MATERIAL SERIES No.79

cybercrime, such as computers seized during investigations of financial crimes. But the Brazilian Federal
Police is in the process of creating specialized units to concentrate only on cybercrimes.

III. COMPETENCE TO INVESTIGATE, PROSECUTE AND ADJUDICATE OFFENCES
DEFINED IN THE CONVENTION ON CYBERCRIME
The Brazilian Federative Republic was inspired by the North American model, comprising a Union andits component States. The judicial system follows this guideline, and with some simplification, it can be said
that the Brazilian judicial system is organized on two levels: Federal Justices and State Justices.
The Federal Justices and each instance of the State Justices are basically structured around the same
components: the courts; the public attorney’s office and the judicial police. On the Federal level the only
judicial police force is the Brazilian Federal Police.
The competence of each level of the judiciary in the criminal area is defined by the Constitution. In short,the Federal Justices have competence in issues that involve the interests of the Union, serious human rights
violations and the financial system.
Offences included in international treaties that are perpetrated through international borders, such as
the ones defined in the Convention on Cybercrime, involve the Union and therefore are investigated by theBrazilian Federal Police. Also, jurisprudence has established that the publishing of child pornography overthe Internet falls under the competence of the Federal Justices.
However, it is being accepted that, when the offence does not involve the crossing of national borders, forinstance, the transmission of child pornography between two e-mail addresses hosted by providers inside
the Brazilian territory, the offence falls under the competence of the State Justices.

IV. CONCRETE CASES
The majority of the cybercrime occurrences investigated by the Brazilian Federal Police falls under oneof two categories: bank fraud and publishing of child pornography.

A. Bank Fraud
More a routine task than an isolated case, operations against bank fraud are carried out by the Brazilian
Federal Police at a rate of five or six each year. In each one of them, a minimum of fifteen people aredetained, most of them recidivists that are allowed back on the streets shortly after their arrest thanks to
the lack of proper legislation to define and punish their crimes.
The Brazilian Internet banking system is one of the most advanced in the world. During thehyperinflation years in the 80’s and 90’s, the banks were forced to research new technologies and increase
their efficiency to survive the ferocious market. This natural selection led to an environment where nearly
every bank customer with Internet access has little to no physical contact with their bank. Almost every
operation can be completed on the Internet utilizing all the security features available on the server side.
But the natural selection works both ways. The criminals evolved as fast as the technology, developing
progressively more creative schemes to circumvent the security features developed by the financial
institutions. The key, they promptly learned, is to attack the weaker link: the bank’s client. By compromising
the user’s computer by means of malicious software, known as Trojan horses, spread through false e-mails,
they can bypass virtually every protection the banks put in place to protect their clients. Once they get theaccount and passwords information, a wide network of accomplices is used to withdraw the money and maketracing difficult.
The Brazilian Federal Police and the Brazilian Bank Association maintain groups dedicated to registering,
analysing, reverse engineering and tracing back to their origins all the password stealing malware theyfind. After five years of work, as of May 2008, almost 100,000 specimens of malicious software have been
identified. The current average is 67 new Trojan horses a day, 11,000 of them in the first five months of 2008.

68

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

Nearly all the malicious software is hosted on compromised computers or on rented machines outside
Brazil. Half of the specimens are hosted in Russia. All of them send the information they steal from bankclients to email addresses outside Brazil, especially to Google’s GMail service.
As already discussed in this paper, the obstacles to investigating cybercrime under the current Brazilian
legal framework forced investigators to concentrate on old fashioned, non-digital police methods. With thedata provided by the affected banks regarding suspicious money transfers and withdrawals, the suspects are
put under surveillance and the structure of the criminal organization can be identified, leading to the arrests.

B. Child Pornography
In order to be more proactive in investigating child pornography publishing cases, the Brazilian Federal
Police developed a tool to monitor the peer-to-peer networks eDonkey and Kad.
The tool is based on the open-source client named eMule. When fed with a list of known childpornography media files, it monitors the networks and logs the IP addresses, the country and the user ID of
the users sharing each file. A hundred targets within Brazil were prioritized based on the number of illicit
shared files. Three hundred foreign targets’ information was sent through Interpol to nine countries.
In April 2008 the investigation, named Operation Carousel, went to the streets. A hundred search
warrants were executed and, given that Brazilian law punishes the publishing, but not the possession ofchild pornography files, all teams had a computer forensic expert to try to catch the criminal in the act.
Unfortunately, due the long time it took for the providers to identify the addresses of the targets fromtheir IP addresses, most of them were no longer sharing the known child pornography media files. Theircomputers were seized and are currently being analysed by Brazilian Federal Police computer forensic
experts in search of other paedophile material.
In September 2008 a second round of search warrants, in an action named Operation Carousel II, wasexecuted. Simultaneously, law enforcement agencies in Israel, the Czech Republic, Japan, Senegal and Portugal
conducted searches based on the information handed by the Brazilian Federal Police through Interpol.

V. CONCLUSION
Although some simplifications had to be made to comply with the theme and format limitations, this paper
tried to be a faithful portrait of the current practical and legal obstacles to cybercrime investigations in Brazil.
In addition, it attempted to shed some light on a few details concerning the regulation andimplementation of one of the most powerful and controversial tools available to the cybercrime investigator,
the Interception of Content Data, hoping that instead of mere technicalities they are looked upon as
important topics in the discussion of the adoption of a common framework for combating cybercrime.

69

139TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

CURRENT SITUATION AND ISSUES OF ILLEGAL AND HARMFULACTIVITIES IN THE FIELD OF INFORMATION AND COMMUNICATIONTECHNOLOGY IN PAKISTAN
Syed Abbas Ahsan*

I. INTRODUCTION
Information infrastructure is increasingly under attack by cyber criminals. The number, cost andsophistication of attacks are increasing at alarming rates. Such attacks threaten the growing relianceof commerce, governments and the public upon the information infrastructure to conduct business andprocess information. Most of the attacks are transnational by design, with victims throughout the world.
Measures thus far adopted by the private and public sectors have not provided an adequate level of security.
The reasons for lack of success in the field include the lack of timely sharing of information, slow andun-coordinated investigations, inadequacy of legal/investigative infrastructure governing cybercrime,
jurisdictional assertions of multiple states, and lack of international co-operation.
Cybercrimes generally fall into two categories; first where the computer itself or the computer networks
are the intended victims e.g. network intrusion, spoofing and spamming; secondly the use of computers tocommit more traditional crimes e.g. identity theft and computer fraud, etc. Such activities have a significant
negative impact and tend to discourage the use of computers that offer the chance for advancement inknowledge, convenience, commerce and intellectual interaction. This paper focuses on these very issues
with reference to Pakistan. An effort has been made to ascertain the extent of problem and the legal andpractical steps taken by the government to combat this growing menace. Bottlenecks and obstacles in theprocess and infrastructure already in place have also been identified.

II. PERSPECTIVE ON CYBERSPACE USE AND ABUSE IN PAKISTAN
It is very difficult to gauge the actual number of people using information and communication technology
in Pakistan. The figures available from various sources, only on the number of Internet users in Pakistan,vary from 3 million to 17.5 million online users. However, all the major commercial institutions are making
use of information and communication technology and use cyberspace to conduct their businesses, including
all commercial banks. Most of the universities in Pakistan and many educational institutions in the major
cities have online access and provide students access to computers and the Internet. The reason forestablishing a legal framework to regulate electronic transactions and crimes was the dramatic rise in thenumber of Internet users in the country (almost 9,000%) from 2000 to 2008.
The legal apparatus to regulate electronic transactions and combat cybercrime was established throughthe Electronic Transactions Ordinance, 2002 and the Prevention of Electronic Crimes Ordinance, 2007.
The laws established a regulatory mechanism for the conduct of electronic transactions and provided penal
sanctions for the violation of the legal parameters established under these laws. The Prevention of Electronic
Crimes Ordinance also provides the infrastructure for the investigation, prosecution and adjudication of
cybercrimes along with the procedures for the same. On the abuse of cyberspace, the cybercrime figures
may be quite misleading. In all, only 98 complaints have been received in the National Response Center forcybercrimes during the last year, since the promulgation of the Prevention of Electronic Crimes Ordinance.
Of these complaints, only 21 cases have been registered and all of the cases are still under investigation.
The majority of the complaints received were from corporate bodies and public institutions, mostly relating
to fraud and unauthorized access. Almost all the cases required trans-border investigations and co-operation* Superintendent of Police, Islamabad Capital Territory Police, Pakistan.

70

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

from international organizations, which is the main reason for delayed prosecution.
Internet Statistics Asia
ASIA
Afghanistan
Armenia
Azerbaijan
Bangladesh
BhutanBrunei Darussalem
Cambodia
China *
East Timor
Georgia
Hong Kong *India
Indonesia
Japan
Kazakhstan
Korea, North
Korea, South
Kyrgystan
Laos
Macao *
Malaysia
Maldives
Mongolia
Myanmar
Nepal
Pakistan
Philippines
Singapore
Sri Lanka
TaiwanTajikistan
ThailandTurkmenistan
Vietnam
TOTAL ASIA

Population(2008 Est.)
32,738,376
2,968,586
8,177,717
153,546,901
682,321381,371
14,241,640
1,330,044,605
1,108,777
4,630,841
7,018,636
1,147,995,898
237,512,355
127,288,419
15,340,533
23,479,089
49,232,844
5,356,869
6,677,534
460,823
25,274,133
379,174
2,996,081
47,758,181
29,519,114
167,762,040
92,681,453
4,608,167
21,128,773
22,920,946
7,211,884
65,493,298
5,179,571
86,116,559
3,776,181,969

Internet Users, Internet Users,
Penetration(Year 2000)
Latest Data(% Population)
1,000
580,000
1.8 %
30,000172,800
5.8 %
12,0001,035,600
12.7 %
100,000
500,000
0.3 %
500
40,0005.9 %30,000176,02946.2 %
6,000
70,0000.5 %
22,500,000
253,000,000
19.0 %
1,200
0.1 %
20,000360,000
7.8 %
2,283,000
4,878,713
69.5 %
5,000,000
60,000,000
5.2 %
2,000,000
25,000,000
10.5 %
47,080,000
94,000,000
73.8 %
70,0001,400,000
9.1 %---19,040,000
34,820,000
70.7 %
51,600750,000
14.0 %
6,000
100,000
1.5 %
60,000238,000
51.6 %
3,700,000
14,904,000
59.0 %
6,000
33,0008.7 %30,000320,000
10.7 %
1,000
40,0000.1 %50,000337,100
1.1 %
133,900
17,500,000
10.4 %
2,000,000
14,000,000
15.1 %
1,200,000
2,700,000
58.6 %
121,500
771,700
3.7 %
6,260,000
15,400,000
67.2 %
2,000
19,5000.3 %2,300,000
13,416,000
20.5 %
2,000
70,0001.4 %
200,000
20,159,615
23.4 %
114,304,000
578,538,257
15.3 %(%) Users
in Asia
0.1 %
0.0 %
0.2 %
0.1 %
0.0 %
0.0 %
0.0 %
43.7 %
0.0 %
0.1 %
0.8 %
10.4 %
4.3 %
16.2 %
0.2 %-6.0 %
0.1 %
0.0 %
0.0 %
2.6 %
0.0 %
0.1 %
0.0 %
0.1 %
3.0 %
2.4 %
0.5 %
0.1 %
2.7 %
0.0 %
2.3 %
0.0 %
3.5 %
100.0 %Use Growth( 2000-2008 )
57,900.0 %476.0 %
8,530.0 %400.0 %
7,900.0 %486.8 %
1,066.7 %1,024.4 %0.0 %1,700.0 %113.7 %
1,100.0 %1,150.0 %99.7 %
1,900.0 %0.0 %82.9 %
1,353.5 %1,566.7 %296.7 %
302.8 %
450.0 %
966.7 %
3,900.0 %574.2 %
12,969.5 %
600.0 %
125.0 %
535.1 %
146.0 %
875.0 %
483.3 %
3,400.0 %9,979.8 %406.1 %

III. LEGAL FRAMEWORKThe laws related to information and communication technology follow the separation of the e-commerceand cybercrime model. There are separate laws governing both the aspects of the information andcommunication technology, nonetheless, the laws supplement each other in the regulation of all electronictransactions. The laws relating to electronic transactions provide the legal basis for evidence and giverecognition to electronic documents and electronic communications. The laws governing electronic andcybercrime in Pakistan cover both crimes that are traditional in nature, i.e. theft, fraud, forgery, mischief
and terrorism in which computers or any other electronic device is used to commit these crimes, as well
as misuse of computers that is criminal in nature, or what we call content-related crimes, e.g. damage andaccess to electronic devices and data with criminal intent.

A. Penal Sanctions for Cybercrime in Pakistan
The first law promulgated in Pakistan regulating all electronic transactions is the Electronic Transactions
Ordinance, 2002. The Electronic Transactions Ordinance provides a comprehensive legal infrastructure tofacilitate and give legal sanctity to electronic documents as well as protection to e-commerce locally andglobally. This law also penalized the misuse of electronic communication and charts the boundaries forcertification of service providers. The more recent law, the Prevention of Electronic Crimes Ordinance,

71

RESOURCE MATERIAL SERIES No.79

2007, relates to cybercrime and has been framed specifically to criminalize the misuse of electronic media.
Furthermore, the Prevention of Electronic Crimes Ordinance creates the structure required for theinvestigation and adjudication of cybercrimes.
1. Electronic Transaction Ordinance 2002
The Electronic Transactions Ordinance was promulgated in 2002, primarily to provide for the legal
recognition and facilitation of documents, records, information, communications and transactions inelectronic form. The law gives legal recognition to documents, information and records and allows theiradmissibility in a court of law without the requirement of a witness. The maintenance of documents inphysical terms is also satisfied under this law if the document or record is accessible and retrievable.
Moreover, the Ordinance delineates the rules on compliance and retention of documents in electronic
form. The law also establishes the parameters for electronic communications and thus creates rules
for associating documents with the recipient as well as the sender. Rules are also designed for legal
acknowledgement, time and date of sending, along with establishing the place of sending and dispatch ofelectronic communication.
The Electronic Transactions Ordinance also formulates the principles that are required for any document,
record, or communication and information to be deemed legally secure, thus setting up a digital signature
regime whereby electronic signatures and electronic applications provide the legal security required forany electronic transaction. The Ordinance also establishes the criteria for the authenticity and integrityof advanced digital signatures provided by the certification service providers. The certification service
providers extend certifications to websites and digital signatures.
The law does not criminalize most of the offences as supported by different international forums; however,the law does provide legal cover for the evidentiary value of all electronic transactions by amending Pakistan’s
evidence laws. The law recognizes the authenticity of all electronic transactions and brought these at par withother documentary transactions. Moreover, the Electronic Transactions Ordinance provides the foundation
for the subsequent penal law, the Prevention of Electronic Crimes Ordinance, 2007. As an interim measure toprevent the misuse of now legally acceptable documents and to restrict the misuse of incentives granted in thelaw, certain offences are penalized. The penal sections of the law relate to false information from the subscriber
to the certification service provider, issuance of false certificates, violation of privacy of information and damage
to information systems or data.
2. Prevention of Electronic Crimes Ordinance 2007
The Prevention of Electronic Crimes Ordinance, 2007 was enacted against crimes related to theconfidentiality and integrity of electronic systems, networks and data, as well as the misuse of such
systems, networks and data. The law, apart from providing penal sanctions against the abuse of electronictransactions, also provides the procedural regime for the investigation, prosecution and adjudication of
cybercrime. The following chart represents the survey responses of Internet users in Pakistan on Internet
Governance, showing their top five concerns.
100
90
80
70
60
50
40
30
20
10
0

Dissatisfied
Satisfied
No View

Virus Attacks

72

Spam

Online Fraud

IllegalContent

Local
Software140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

The chart above not only represents the concerns of Internet users in Pakistan, but also gives aninformed opinion about the state of affairs in the field of combating cybercrime in Pakistan. The huge rateof growth of Internet users and the opinions of Internet users, both corporate and individual, have been the
key drivers for the creation of the electronic regime in Pakistan. The ordinance based on such feed-backpenalizes the following:
•
•
•
•
•
•
•
•
•

Criminal access or damage to electronic data or systems
Electronic fraud or electronic forgery with wrongful intent
Misuse of electronic system or device with criminal intent
Unauthorized access to codes or passwords with wrongful intent
Encryption of incriminating communication or data
Spamming, spoofing or use of malicious codes
Cyber stalking, especially against minors
Unauthorized interception by technical means
Use of electronic system with ‘terroristic intent ’A detailed scrutiny of the law shows that its framers intended to adopt a very broad interpretation in
the definitions and explanations of the crimes. This point is evident from the title and definitions as wellas the penal sections of the law. Instead of using the terms “cyber” or “computer” crimes, the emphasis
is on “electronic” crimes. As far as possible all definitions and interpretations are kept open with the useof phrases like ‘including but not limited to ’, etc. The broad interpretation may have been adopted keeping
in view the common law tradition of prosecutorial discretion providing protection against inappropriate
application of the law. Furthermore, in-depth interpretation and setting up of the limits of the application oflaw is left to the thorough scrutiny of judicial decisions during court proceedings.
A noticeable omission in the law is the non-differentiation of “negligent” and “intended” misuse oftechnology. The law is criticized for not making any distinction between what is unethical and what is illegal.
In the Ordinance the sections relating to spamming, spoofing and unauthorized interception allow criminal
proceedings without requiring criminal intent of the person involved in such acts. Without giving due
consideration to criminal intent there is a possibility of misapplication of the law either by mistake or abuse.
Therefore, the intent of the offender must be considered in all circumstances before any criminal sanction
is applied against that person. Only when the criminal intent of a person is established, penal proceedings
should be initiated against the person. There is a need to remedy this omission by establishing criminal
intent in the forefront before the application of any penal sanction.
The law has been criticized for a number of other reasons. First, the law has been condemned as a curbon the freedom of expression, especially the part relating to cyber-stalking. Distribution of photographsof persons without their consent/knowledge and display/distribution of information are issues that needclarification in this section. This explanation amounts to censorship and can prove to be a hurdle for sharing
of information, healthy criticism, or even common gossip over blogs. Moreover, the definition of cybercrime
as given in the law is quite vague and includes terms prone to a wide multitude of interpretation e.g. vulgar,
profane, indecent, immoral, etc. Such words have an extremely wide interpretation even in dictionaries
and can have different connotations for different cultures, regions, or even individuals. The law, while
establishing penal sanctions, should be clear so that any person coming under the jurisdiction of the law
knows what limits the law has established and what constitutes an offence.
Secondly, section 11 of the law against the misuse of encryption has been censured for coercing selfincrimination which is contrary to fundamental civil rights. This section penalizes any person who encrypts
any incriminating communication or data contained in an electronic system. However, this section is against
Article 13 of the Constitution of Pakistan, 1973, which provides protection against self incrimination. As thissection provides a criminal penalty for concealing incriminating evidence, it coerces an offender to decrypt
such evidence, which may be self-incriminating. Hence, the law violates the right of protection against selfincrimination granted by the Constitution of the country.
Thirdly, section 18 has been disapproved for putting the burden of proof on the person accused of theoffence under that section. This section deals with the offences involving sensitive electronic systems and73

RESOURCE MATERIAL SERIES No.79

provides greater punishment if such systems are accessed. Although the burden of proving the crime initself, i.e. illegal access to the system, lies with the prosecution, the law presumes that the accused had therequisite knowledge that the system accessed was a sensitive electronic system. This presumption shifts theburden of proof on the accused which is against the basic norms of criminal jurisprudence, which requires thecrime to be proved beyond reasonable doubt by those who bring the charges against the accused.
Finally, the most vociferous denunciation has been directed against the term ‘terroristic act’ and thepenal section associated with it. The evidently broad definition and explanation of this section is vulnerable
to misinterpretation as well as manipulation. It is pertinent to note that the definition and explanation ofterrorism is much more restricted and specific in the Anti-terrorism Act; as such many offences that may
not attract the Anti-terrorism law can be prosecuted under this law. Use of malicious code against a public
entity or computer network operated by the government and “violence” against the sovereignty of the state
has been included in the definition of terrorism. “Violence” has further not been elaborated and is left to thediscretion of the person applying and therefore interpreting the law. In addition to this, the explanation ofterroristic intent has similar flaws and is open to misapplication.

B. Comparison with Convention on CybercrimeWith regard to the definitions of offences against confidentiality, integrity and availability of computer
data and systems, these have been criminalized in Pakistan as explained in the Convention on Cybercrime of
the Council of Europe. Comparable criminal sanctions are available in the Prevention of Electronic Crimes
Ordinance 2007 for illegal access, interference, misuse and interception of electronic data or systems. The
definitions in Pakistan are comparable with the convention and have rather been kept broad to take accountof any offence related to the illegal use of all electronic devices, including computers or computer data.
Computer-related fraud and computer-related forgery has also been amply covered in the laws in Pakistan.
The same principle has been followed that all electronic devices have been included which may be used tocommit any fraud or forgery.
Regarding the content related offences, the Prevention of Electronic Crimes Ordinance has limited
application. Spamming, spoofing, cyber-stalking and malicious codes, which include viruses and Trojans,etc., have been criminalized. However, these do not cover all content-related offences as enumerated in
the Convention. Moreover, the laws in Pakistan do not provide any sanctions against offences describedin the Additional Protocol relating to racism, hate crimes and xenophobia. The issue of child pornography
is not penalized in the law, but it is argued that the sanction against cyber-stalking provides protection tominors against abuse. The section on cyber-stalking does provide protection to the extent of soliciting
illegal acts, which may include sexual acts; but the section does not criminalize production, transmission orpossession of child pornography. A relevant observation in this regard is that all pornography, whether childpornography or otherwise, is illegal in Pakistan.
Protection of Intellectual Property Rights is another omission in the cybercrime laws in Pakistan. Again,
it is contended that Intellectual Property is protected by laws particularly drafted for the protection of thesame, and the cyber laws provide protection against accessing codes and passwords for the purpose of any
illegal use of electronic data.

IV. IMPLEMENTATION OF THE CYBERCRIME REGIMEA National Response Center for Cyber Crimes has been established under the Federal Investigation
Agency to deal with all issues related to cybercrimes. The functions of the National Response Center as
declared by law are to ensure the enforcement of cyber laws, and to prevent, investigate and prosecute
electronic crimes. The law also envisages a tribunal for the adjudication of all crimes under the Prevention
of Electronic Crimes Ordinance. The National Response Center, apart from being the primary investigation
agency against cybercrime, performs the following functions:
•
•
•
•
•

74

Co-ordination with international organizations to handle trans-border cases;
Technical support to government organizations for data and network security;
Real-time network traffic patrolling and collection of data;
Capacity building of law enforcement agencies in cybercrime;
Provision of forensic services for cybercrime.

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

The tribunal for the adjudication of cybercrime as proposed in the law is yet to be established. All cases
related to cybercrime are prosecuted in the normal penal courts as required by law until the tribunal isestablished.

A. Investigation
The National Response Center for Cyber Crime, which is the premier investigating agency against
cybercrime, has its head office in the national capital, Islamabad, with three regional offices across thecountry. The centre’s facilities consist of a Digital Forensic Laboratory and a cybercrime reporting andinvestigation centre. It provides special investigative services under the Telecom Act 1996, the Electronic
Transactions Ordinance 2002 and the Prevention of Electronic Crimes Ordinance 2007. The National
Response Center for Cyber Crime also provides technical support to the local police in investigations
involving the use of electronic devices. Such support is provided in investigations of ordinary crimes where
electronic devices or media is used in commission of the crime.

Victim ofCyber Crime

LEGEND

ReportingSequence of activities
Information flow

Internal
Authorising Authority

Authorisation

X

Investigative activity

X

EntityX

Information

Planning
Internal imposed
policies, regulationand legislation

Notification

Request and response
Information flow
through activities

Search/Identify

Collection

Transport

Storage

Internal
Challenges toHypothesis

Examination

Hypothesis

Presentation

Proof Defence

Court of
Law

Court of Law

Dissemination

The proposed model of cyber crime investigation

A waterfall model is used for investigation of cybercrime. All activities follow each other in sequence.
The model progresses from crime reporting to authorization of investigation. The next step in the process
is the collection and storage of evidence. Finally evidence is examined, a hypothesis established regarding
the incident and the case is prepared for prosecution in a court of law. In fact, the investigation steps
require several repetitions before the case is finally prepared for prosecution. The last step of examinationhypothesis-presentation may be reiterated a number of times as the understanding of the evidence grows inconnection with other relevant evidence.
However, as the whole structure established against cybercrime is still in its infancy and the processes
are not formalized, The National Response Center will come across many practical and proceduralchallenges in due course. Experience in handling electronic crimes will help the Center to determine its
future course of action in combating cybercrime. Interaction with other international agencies and further

75

RESOURCE MATERIAL SERIES No.79

research and development will educate those involved in this endeavour to chart out the best methods toprobe electronic offences. Apart from the lack of experience in handling electronic offences, there is a lackof awareness regarding the handling of such cases, not only in the general public but also amongst thoseaffiliated with the criminal justice system.
1. Reporting System
Electronic crimes are reported to the National Response Center, which after initial inquiry and internal
authorization approves the registration of a criminal case under any of the laws governing electronic
offences. The cases are registered with the police stations of the Federal Investigation Agency, which has anestablished network around the country and deals with a number of other specialized crimes.
The major issue with the reporting mechanism is the lack of awareness amongst victims. Electronic
crimes are normally not reported for the reason that it is assumed that such crimes cannot be traced andthe criminals are faceless. Moreover, the victims of electronic crimes do not know where and how to reportelectronic crimes. Most electronic crimes go unreported till they have reached an alarming stage, whereby
the investigations are conducted on the initiative of either the National Response Center or anothergovernment agency. In certain instances, electronic crimes have been initiated in response to requests fromlaw enforcement agencies of other countries.
2. Digital Forensics
The increasing problems of cybercrime have enhanced the importance of digital evidence and digitalforensics. Digital forensics includes the preservation, identification, extraction, documentation andinterpretation of digital data. As electronic evidence presents special challenges for its admissibility incourts, proper procedures are required for collection, examination, analysis and reporting of evidence. The
National Response Center has established its procedures based on the above mentioned objectives.
The collection phase involves search, recognition and documentation of electronic evidence. The
examination phase includes the documentation of the content and state of evidence. This phase also involves
the search of any information that may be hidden or obscured. Analysis differs from examination in that
it looks at the evidence for its significance and probative value to the case. Examination is the technicalreview that is the province of the forensic expert, while analysis is performed by the investigation team.
The process is completed with a written report outlining the examination process and the pertinent data
recovered. Examination notes are also preserved for purposes of discovery and testimony. The examiner
may be required to testify about the conduct of the examination, the validity of the procedure and his or her
qualifications to conduct the examination. In this regard, the digital forensic laboratory provides technicalsupport for examination of evidence for prosecution of electronic crimes.
The digital forensics laboratory has the facilities for the collection, validation, identification, analysis,
interpretation and documentation of data as well as its preservation as digital evidence. It has the capacity
for reconstruction of corrupt data which may have evidentiary value. The laboratory is equipped with thenecessary software and equipment to achieve these ends. Although the Digital Forensic Laboratory has
successfully supported the investigations conducted so far, there is room for further improvement withregard to technical expertise and equipment. An issue with evidence collection from cyber space is themaintenance of traffic data by service providers. In many instances, traffic data is not available from theservice providers to identify criminals or the origin of the crime.
3. Co-operation and Liaison
The National Response Center is the focal point for all cases relating to electronic crimes and electronic
security. Government departments liaise with the Center for their network and data security. Pakistan
Telecommunication Authority, which regulates service providers and network traffic data, also co-ordinateswith the Center for the enforcement of electronic laws. The Center is the central repository for research on
network security and electronic crimes. To increase awareness and understanding of electronic offences theCenter also conducts training and seminars for different agencies related with the criminal justice system.
The National Response Center aids local law enforcement agencies in investigations where electronic media
is used in the commission of crimes. Support is provided in the examination of electronic evidence andtracing criminals through electronic media.

76

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

International co-operation for detection of cybercrime is also routed through the Center, which has
established liaison with Interpol. However, international co-operation is not very forthcoming for a numberof reasons. First, electronic crimes are not criminalized in many jurisdictions and network traffic data is
not available in many jurisdictions. This helps cyber criminals establish spoof network addresses, whichmakes it difficult to detect the actual perpetrators of the crimes. Secondly, international co-operation is
not very forthcoming because the victim is in another jurisdiction, therefore less importance is attachedto such investigations. There is also animosity and doubt about the credibility of investigations carriedout in other jurisdictions and at times problems arise due to the admissibility of evidence collected in aforeign jurisdiction by a foreign investigation agency. Furthermore, priorities differ amongst states on
the prosecution of certain offences. It is for these reasons that the cybercrime law in Pakistan is based onreciprocity as far as international co-operation is concerned. Furthermore, it does not make international
co-operation mandatory. Rather it allows ample discretion in assisting investigations and sharing information
regarding electronic crimes and data with other jurisdictions.

B. Prosecution and Adjudication
As the infrastructure against electronic offences is in its early stages and investigations in some cases
have only recently been initiated; none of these have reached the prosecution or adjudication phase. The
law requires setting up a Tribunal for the adjudication of electronic crimes, which has not been establishedyet. Until the Tribunal, ordinary courts are empowered to adjudicate electronic crimes; the Tribunal isempowered to take cognizance of offences under the Prevention of Electronic Crimes Ordinance.
1. Jurisdiction
The law allows for a wide application of jurisdiction covering the principles of territorial, extraterritorial as well as personal jurisdictions. However, such a wide interpretation of jurisdiction of the law is
not advisable and practically unrealistic. The principle of territorial jurisdiction is accepted in all criminal
offences, based on the principles of respect for the sovereignty of other states. Jurisdiction is applied if theoffence is committed within the territory of the state or if the offence produces its effects in the territory of
the state. Even such application of limited jurisdiction leads to conflict of laws. Extraterritorial jurisdiction
may result in the non-availability of evidence which may be present in the jurisdiction where the actual
offence was committed. Moreover, even if, through international co-operation, evidence and the suspect arebrought to the jurisdiction of the victim, the cost of numerous such investigations and prosecutions would
lead the system to failure. Another issue with extraterritoriality is that an act performed in one jurisdiction
may not be an offence but it may be criminalized in the jurisdiction where the act effects. Such a system
is also prone to abuse, as it may be used to prosecute public officials or extraterritorial investigations may
form an excuse for espionage. There is a need to establish a mechanism to settle jurisdictional conflicts
through recognition of the investigative processes and evidence in other jurisdictions around the world andto standardize the priority of exercising jurisdiction.
2. Electronic Evidence Admissibility and Evaluation
The evidential issues, as already discussed, have been sorted out through the Electronic Transactions
Ordinance, which has made amendments in the existing evidence laws to provide legal recognition to allelectronic transactions. In addition to this, for the purpose of evaluation of evidence, the Prevention ofElectronic Crimes Ordinance allows the tribunal to appoint and take assistance in technical aspects fromamicus curiae having knowledge, experience, expertise and qualifications in information and communication
technology, of which the government is bound to maintain a list.

V. CONCLUSION
In the final analysis, it is concluded that although Pakistan has taken a number of steps towards
controlling electronic offences, there is room for much needed improvement. The government has shown its
interest in finding solutions for recognition of electronic transactions and criminalizing electronic offences
through promulgation of laws in this context. Although practical measures have also been taken to counterelectronic crimes, there is a need for a more proactive approach. The enforcement of law, especially inthe field of maintenance of electronic traffic data, is one aspect that requires special attention, as most of
the investigations have reached dead ends due to the lack of data. Consequently, investigations remain
incomplete. Another obstacle in the path of investigations is the issue of jurisdiction and international

77

RESOURCE MATERIAL SERIES No.79

co-operation. Till the time these issues are settled on an international level the problems will continue toobstruct the combating of electronic crimes.
Practical issues in prosecution and adjudication are yet to be encountered as none of the investigations,
initiated so far, have reached that stage. As the criminal justice system in Pakistan is based on Common Law,decisions by the courts would help in interpreting and elucidating the essence of the law. Nevertheless, thelegal framework needs certain clarifications, and modifications. It is hoped that practical application of thelaws and further research will help in developing the legal structure and remedying its flaws.

78

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

BIBLIOGRAPGHY
Commonwealth Secretariat. (2002, October). Model Law on Computer and Computer Related Crime .
Retrieved August 3, 2008, fromhttp//:commonwealth.live.poptech.coop/shared_asp_files/uploadfiles/%7BDA109CD2-5204-4FAB-AA7786970A639B05%7D_Computer%20Crime.pdf
Constitution of the Islamic Republic of Pakistan. (1973). Pakistan.
Council of Europe. (2003). Additional Protocol to the Convention on Cybercrime, Concerning the
Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems (ETS189) . Retrieved August 15, 2008, fromhttp://conventions.coe.int/Treaty/en/Treaties/Html/189.htm
Council of Europe. (2001). Convention on Cybercrime (ETS 185) . Retrieved August 15, 2008, from http://
conventions.coe.int/Treaty/en/Treaties/Html/189.htm
Electronic Transactions Ordinance. (2002). Gazette of Pakistan, Extraordinary, Part-I of 2002 . Pakistan.

Internet World Stats . (2008, June 30). Retrieved August 21, 2008, fromhttp://www.internetworldstats.com/stats3.htm
Jamil, Z. U. (2002, September). E-COMMERCE LAW IN PAKISTAN . Retrieved August 20, 2008, fromwww.jamilandjamil.com/publications/pub_reports/IBP%20Paper%20151004.pdf
Prevention of Electronic Crimes Ordinance. (2007). Gazette of Pakistan, Extraordinary, Part-I of 2007 .
Pakistan.
United Nations. (2000). Tenth United Nations Congress on the Prevention of Crime and Treatement of
Offenders . Retrieved August 10, 2008, fromhttps://www.asc41.com/10th%20un%20Congress%20on%20the%20Prevention%20of%20Crime/013%20
ACONF.187.10%20Crimes%20Related%20to%20Computer%20Networks.pdf
United Nations. (1994). The International Review of Criminal Policy: United Nations Manual on thePrevention and Control of Computer-related Crime . Retrieved August 7, 2008, fromhttp://www.uncjin.org/Documents/irpc4344.pdf
Zinnbaur, D. (2005). Internet Governance Priorities and Practices : Pakistan. Islamabad: United Nations
Asia-Pacific Development Information Programme.

79139TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

COUNTRY REPORT ON CYBERCRIME: THE PHILIPPINES
Gilbert C. Sosa*

I. INTRODUCTION
Cybercrime goes beyond the technical, transnational dimension and involves offenders who deliberately
fashion their attacks to exploit the potential weaknesses present in the infrastructure’s transnational nature.
It threatens the substantial and growing reliance of commerce, governments, and the public upon theinformation infrastructure to conduct business, carry messages, and process information.
Cybercrime is one of the fastest growing non-violent crimes in the Asian region. It takes a great deal oftechnical expertise and co-operation, both local and foreign, in order to address such problems. This crime affects
different countries in varying degrees, depending on the extent of the legislative enactment of each country.
In the Philippines, as technical and electronic landscapes change, there is a need to enact laws or amend
existing laws to fully address cyber threats.

II. PHILIPPINE SITUATION
A. Government Responses
The public is aware of the importance of legislation that supports police efforts against computer
crimes. Onel de Guzman, the Philippine dropout who, in August 2000, created and unleashed a remarkably
dangerous computer virus called “I LOVE YOU”, cost several companies, governments, and citizens billions
of US dollars in damages. In August of the same year, charges against him in our country were dismissed,
mainly because we had not yet passed legislation addressing the crimes he had committed. The publicaround the world is justifiably outraged.
1. The “I LOVE YOU” Computer Virus
The virus was received in e-mail inboxes in Hong Kong on 4 May, 2000, with subject “I LOVE YOU” and an
attachment “LOVE-LETTER-FOR-YOU.TXT.vbs.”. It erases or blurs the graphics and data in the computerand gets the contact addresses in the computer directory, and sends the same email to all contacts listed in that
directory. Once received and opened in another computer, it replicates all that it did previously. The replication
went on and on, sweeping all computers where the email was received and opened, from Hong Kong, toEurope, to the United States, infecting and damaging computers and networks of small and big companies,
private and government institutions. The damage was about US$ 5.5 billion; some reports say US$ 10 billion.
2. Arrest of the Suspect
An international manhunt was conducted; the investigators traced the origin of the virus to its creator, aprogramming student (Onel de Guzman) at the AMA Computer University in Manila.
When arrested (11 May 2000), the suspect apologized to the public and said he had no intention of
causing such great harm. Government prosecutors filed cases against him, but even at the first stage, theindictment was dismissed as there was no law penalizing the act at the time (May 2000) in the Philippines(nullum crimen, sine lege )!
3. Effect of the “I LOVE YOU” Virus
The “I LOVE YOU” virus illustrated that a person armed with a computer could, from a distant location,
attack and/or disrupt computers and networks worldwide and cause severe damage.
* Chief, Anti-Transnational Crime Division of Criminal Investigation and Detection Group, Philippine National Police.

80140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

This whole episode points to the need for a domestic law to address a particular criminal act, and international/
bilateral legal instruments to give “no-safe haven” to cyber-criminals (or would-be cyber-terrorists).
The Philippine Congress subsequently passed a law that penalizes computer/cybercrimes, although it did
not cover cyber-terrorism.
4. Congress’ Response
In order to curb the threat posed by cybercrime, the Philippine Congress enacted Republic Act (RA)8792, otherwise known as the “Electronic Commerce Act of 2000”. RA 8792 provides for the legal
recognition and admissibility of electronic data messages, documents and signatures. This was signed into
law on 14 June 2000. The salient features of the Act are as follows:•

Provides for the admissibility of electronic documents in court cases;•

Penalizes limited online crime, such as hacking, introduction of viruses and copyright violations of atleast Php100,000 and a maximum commensurate to the damage incurred, and imprisonment of six
months to three years, among others;•

Promotes e-commerce in the country, particularly in business-to-business and business-to-consumertransactions whereby business relations are enhanced and facilitated and consumers are able to findand purchase products online;•

Aims to reduce graft and corruption in government as it lessens personal interaction between
government agents and private individuals.

RA 8792 is considered the landmark law in the history of the Philippines as a legitimate player in the
global marketplace. It has placed the Philippines among the countries penalizing cybercrime.
Likewise, the Supreme Court drafted the Rules on Electronic Evidence, which took effect on 1 August
2000, to emphasize the admissibility of evidence in electronic form, subject to its authenticity and reliability.
This restriction intends to safeguard against accepting evidence of doubtful character.
We have also the Access Devices Regulation Act of 1998 (RA 8484) which regulates the issuance anduse of access devices, prohibiting fraudulent acts committed and providing penalties and for other purposes;
and, Philippine Central Bank Circular 240 dated 7 April 2000 regulating the electronic banking services offinancial institutions.
While RA 8792 is already in place, it was found to have failed to address all forms of cybercrime that are
enumerated in the Budapest Convention on Cybercrime of 2001, namely:•

Offences against confidentiality, integrity and availability of computer data and systems which
include illegal access, illegal interception, data interference, system interference, misuse of devices;•

Computer-related offences which include computer-related forgery and computer-related fraud;•

Content-related offences such as child pornography;•

Offences related to infringement of copyright and related rights.

Furthermore, enforcing the law with the use of the existing guidelines embodied in the Revised Penal
Code, as amended, may not work for cybercrime. Unlike the traditional and terrestrial crimes which deal
with corporeal evidence, cybercrime involves more electronic data which are intangible evidence.
In order to cope with the daunting problem of cybercrime, the Department of Justice (DOJ) created theTask Force on E-Government, Cyber-security and Cybercrime in 2007 to deal with cyber-security issues inrelation to legislation and investigation. It was created to pursue the e-government agenda, institutionalize acyber-security regime and implement laws. The said task force worked closely with the Council of Europe, aprivate organization, and local experts composed of IT practitioners and other stakeholders.

81

RESOURCE MATERIAL SERIES No.79

Among the top priorities of the Task Force was to work for the passage of the cybercrime prevention
act, and the Task Force proposes the creation of e-courts to oversee all high-tech cases of hacking or crimes
committed using Internet technology. Included in its effort is capacity-building of the technical knowledge ofgovernment prosecutors and judges whose courtrooms will be designated e-courts.
A related Technical Working Group (TWG) on Cybercrime and Cyber-security consists of representatives
from National Government Agencies, including law enforcement agencies like the Philippine National Police(PNP), National Bureau of Investigation (NBI), private companies and academia, which have joined hands in orderto address issues relating to cyber-security and cybercrime in the Philippines. It aims to consolidate and makeconcrete the government’s efforts on cyber-security and to successfully implement measures to fight cybercrime.
The TWG drafted and proposed a bill that will supplement the current RA 8792. The proposedcybercrime bill includes a definition of cybercrime, penalties and provisions on Internet piracy andprovisions on co-operation with the international community.
The proposed bill covers not only computers and computer networks but mobile devices as well. The bill
will also have anti-spam measures, and will cover SMS or text messaging for mobile phones, treating mobile
phones as “communication devices”.
Another added provision concerns “corporate liability” and proposes that a company can be held liablefor cybercrimes like hacking or virus attacks when its computer network is utilized in the commission ofprohibited acts.
The bill also proposes to create a Computer Emergency Response Council (CERC) under thesupervision and control of the Office of the President to formulate and implement a national action plan
to address and combat cybercrime. The CERC shall be headed by the Chairman of the Commission on
Information and Communications Technology (CICT). Other members shall be the Director of the National
Bureau of Investigation (NBI) as Vice Chairman and Director General of the Philippine National Police(PNP), the Head of the National Prosecution Service (NPS), the Head of the National Computer Center(NCC), the Head of the Philippine Center on Transnational Crime (PCTC), the Head of the Anti-Fraud andComputer Crimes Division (AFCCD) of the NBI and the Head of the Criminal Investigation and Detection
Group (CIDG) of the PNP, as well as three representatives from the private sector involved in information
security, to be appointed by the President as members.
On 26 September 2007, the Philippines signed the United Nations Convention on the Use of Electronic
Communications in International Contracts at United Nations Headquarters in New York. Adopted by theUnited Nations General Assembly on 23 November 2005, the United Nations Convention on the Use of
Electronic Communications in International Contracts aims to enhance legal certainty and commercial
predictability where electronic communications are used in relation to international contracts.
In October 2007, the “Legislators and Experts Workshop on Cybercrime”, led by the Commission on
Information and Communications Technology (CICT), declared their support for Philippine accession to the
Budapest Convention on Cybercrime and the expeditious passage of an implementing anti-cybercrime law
to prevent, mitigate, and deter the commission of ICT related crimes, to foster co-operation within the ICT
community, government, private sector and civil society in promoting an atmosphere of safe computing.
The United Nations Commission on International Trade Law (UNCITRAL) is the core legal body of
the United Nations system in the field of international trade law. Its mandate is to remove legal obstacles
to international trade by progressively modernizing and harmonizing trade law. It prepares legal texts in a
number of key areas such as international commercial dispute settlement, electronic commerce, insolvency,
international payments, sale of goods, transport law, procurement and infrastructure development.
UNCITRAL also provides technical assistance to law reform activities, including assisting member states toreview and assess their law reform needs and to draft the legislation required to implement law.

B. The Philippine National Police (PNP) Efforts
At the forefront of this cybercrime information campaign is the Anti-Transnational Crime Division(ATCD) of the Criminal Investigation and Detection Group (CIDG) of the Philippine National Police (PNP).
82

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

The ATCD-CIDG has a dedicated computer forensic laboratory manned by certified computer forensic
examiners (EnCE) and trained computer crime investigators.
At present, numerous reports of emerging cybercrimes are emanating from the country, particularly
cyber-sex and child trafficking rings.
With this development, the PNP has focused its efforts on a cybercrime information campaign within
the organization. It aims to promote a deeper understanding of the impact of cybercrime and to solicit theconcerns and insights of the community on cybercrime-related incidents. Likewise, it has also establishedlinks with foreign counterparts in order to successfully fight the threat posed by cybercrime operations.
The first Filipino to be convicted of cybercrime, particularly hacking, was JJ Maria Giner. He wasconvicted in September 2005 by Manila MTC Branch 14 Judge Rosalyn Mislos-Loja. Giner pleaded guilty tohacking the government portal “gov.ph” and other government websites. He was sentenced to one to two
years of imprisonment and fined Php100,000. However, he immediately applied for probation, which was
eventually granted by the court. The conviction is now considered a landmark case, as he is the first local
hacker to be convicted under section 33a of the E-Commerce Law or Republic Act 8792.
The Anti-Transnational Crime Division (ATCD) of the Criminal Investigation and Detection Group of thePhilippine National Police (PNP-CIDG) was involved in the gathering of electronic evidence and the tracking
down of the Filipino hacker with help from local Internet service provider Bitstop Inc., which hosted the gov.
ph portal when it was attacked by Giner.
1843
2000
1800
1600
2008

1400

2007

1200

2006

1000

527

2005

800

2004

600
400

161

56

37

109

2003

200
0
2003

2004

2005

2006

2007

2008

Computer Crime Case
2003 – July 2008
99
100

80

80

65

2008
2007

60

2006

35

40

2005

21

20

2004
2003

0

0
2003

2004

2005

2006

2007

2008

Forensic Examination
2003 – July 2008

83

RESOURCE MATERIAL SERIES No.79

Since its creation as a Division of the CIDG in 2003, the ATCD has encountered 2,624 referred casesof computer crimes both from government agencies and private individuals nationwide. Likewise, from CY
2004 to CY 2007, a total of 195 computer forensic examinations were also conducted.
At present, based on records from the DOJ Task Force on E-Government, Cyber-security and Cybercrimes,
more than 30 cybercrime cases were filed before Philippine courts on cases relating to website defacements,
on-line pornography cyber-stalking, Internet libel, computer forgery, text scams, and privacy issues.
In order to beef-up its capabilities to handle various computer-related endeavours, the ATCD-CIDG
personnel received a total of 67 training sessions, both local and abroad, from 2003 to 2008. Likewise, a totalof 13 training sessions were conducted for 426 personnel of the PNP nationwide.
25
21
20
Local Training

15
10

10

Foreign Training

9
6

5

12

11 11

5

5

3

4

Training Conducted

5
2

3

2

0
2004

2005

2006

2007

2008

Training Attended and Conducted by ATCD Personnel
2004 – July 2008

C. Philippine Emergency Response Team (PHCERT)The first computer emergency response team or CERT in the Philippines is the PH-CERT. PH-CERT
provides assistance or responses to cyber incidents locally. PH-CERT funding has to come from its
membership fees and sponsorships, thus it cannot afford to have permanent staff and its services are purely
voluntary. Its Concept of Operation of providing assistance is email-based and phone-based and on-site
services are very minimal or do not exist. The organization has a strong co-ordination with law enforcement
agencies through the conduct of technical training. However, lately, the operation of PH-CERT encountereddifficulty due to lack of financial support and human resources.
D. Government Computer Security and Incident Response Team (GCSIRT)GCSIRT was created through the Task Force on Security of Critical Infrastructure (TFSCI) and its aim is tosuppress, detect and investigate computer network intrusions and other related Internet or computer crimes.
In research conducted by the GCSIRT from CY 2003 to CY 2007, there was evidence of transnational
attacks on computers and the information infrastructure and a total of 667 government websites werediscovered defaced, or an aggregate of 133 government websites were attacked by defacers/hackers eachyear, an average of 11 incidents per month. Based on this research, it was found out that 134 coded defacers(both local and international) have attacked these government websites in that five-year period. Of theattacked/hacked government websites, 507 of the 667 government websites were using the Linux operating
system (OS), free and openly available software. This operating system (OS) is the most prone to attacks bydefacers/hackers.

84

140TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
446

500
400

2008
2007

300

2006
200
73

44

100

75

29

2005
53

2004
2003

0
2003

2004

2005

2006

2007

2008

Government Web Site Defacements(2003 -2008)

III. ISSUES
Despite the overwhelming efforts of the government and the private sector in combating cybercrimein the Philippines still much has yet to be done. The following issues hamper the effective security andprotection of Philippine cyberspace:

A. Legislation against Cybercrime
The present laws are not sufficient to completely deter cyber-offenders and to protect the Philippines’
cyberspace. For instance, the most important cyber-security legislation in the country, which is Republic Act
8792 or the E-Commerce Act, enacted on 14 June 2000, only penalizes hacking, cracking and piracy. It does
not provide penalties for other cybercrimes such as cyber-fraud and similar offences.
B. Budgetary Constraints
Though Government spending in ICT is rising, the amount intended for the security of ICT andcybercrime prevention is very minimal.
C. Overlapping Roles of IT Government Bodies
There is no single overall government body that is mandated to address the problem of cybercrimes andto institute policies on combating such. The proliferation of different ICT committees and task forces in thegovernment yields multiple and murky ICT directions.
D. Lack of Information Sharing, Co-ordination and Co-operation among the Stakeholders
Although there have been conferences and multilateral co-operation undertaken by the government andthe private sector to develop information sharing and intelligence, still there is no established contact point
for co-operation and co-ordination.
E. Lack of Proper Training of Law Enforcers
Most law enforcers do not have the proper training on computer forensics, investigation and handlingof digital evidence. Worse, some do not have basic understanding of the concepts of cyber-security andcybercrime.
F. Public Awareness
Up to this time, the general public is not yet properly educated on the debilitating effect of cyber intrusions
and improper computer ethics. The public should understand its role in securing the country’s cyberspace.

85

RESOURCE MATERIAL SERIES No.79

IV. CONCLUSION
The challenge of controlling transnational cybercrime requires a full range of responses, including
both voluntary and legally mandated co-operation. The government must actively pursue transnational
initiatives, either voluntary, informal exchange of information, or multilateral treaties to establish a commonand substantial degree of co-operation in the investigation and prosecution of cybercrime offences, sinceat present, there are widespread disparities among states, in the legal, regulatory, or policy environment
concerning cybercrime.
With all the consolidation, revisions and filing anew of the improved version of the bills and trying to alignthese with the Budapest treaty, Congress has yet to act on the pending bills aimed at enacting cybercrime
law in the Philippines.
Prosecutors and judges must possess technical know-how in litigating cybercrime cases.
The law enforcement agencies need specialized training and equipment in order to combat such atechnical war.
Lastly, tapping all government allied agencies at the regional and international level will enhance capacity
building efforts.

V. RECOMMENDATIONS
1. A law on cybercrime be enacted without delay, to supplement RA 8792, which conforms tointernationally accepted standards.
2. Create a special agency with the technical expertise to monitor and regulate cyber-activities.
3. Law enforcement agencies be manned by law enforcement personnel with adequate computer skills
and technical expertise and thoroughly trained to operate highly technical equipment.
4. Adequate resources be provided to law enforcement agencies in order to acquire the necessary tools,
equipment and technical skills and continuously upgrade them for the defence of network systems fromcybercrime attacks.
5. Technologies like firewalls, encryption and other infrastructure systems be required for all computer
network systems in order to prevent intrusions.
6. Co-operation among all sectors of society to combat cybercrime.
7. Advocacy to increase awareness of the dangers of cybercrime be strengthened to include publicawareness in order for everyone to become responsible and ethical users of computers and information
systems.
8. Continuous efforts to lobby the members of Congress for the immediate passage of the cybercrime bill,to include the problem of cyber-terrorism.
9. Capacity building measures to ensure that law enforcement officers have a wide array of technicalexpertise in pursuing cybercrime-related investigations.
10. Technical equipment must also be updated, as technology is rapidly changing, in order to cope withthe modern equipment of today’s cybercrime offenders.
11. International co-operation like the MLAT must also be strengthened in order for member countries
to address the problem of cybercrime.

86THE CRIMINAL JUSTICE RESPONSE TO CYBERCRIME: THAILAND
Santipatn Prommajul*

I. CYBERCRIME IN THAILAND
A. Current Situation
The transformation of global socio-economic structures along with the worldwide proliferation of new
information and communication technologies has given rise to more forms of cybercrime, which posethreats not only to the confidentiality, integrity, or availability of computer systems, but also to the securityof critical infrastructure. Furthermore, technological innovation gives rise to distinct patterns of criminal
innovation: hence, different threats from cybercrime mirror differences across the spectrum of the so-called“digital divide”.
At the same time, recent rapid developments in information and communication technology, thegrowth of transnational transactions and the diversification of economic activities have all contributed to
globalization. Together with these changes, which have created a global economic concern, the modus
operandi of criminal groups has become more sophisticated and the scale of their activities has increased
considerably.
This trend has been accelerated by the rapid proliferation of computers and the considerable increase in
the number of Internet users. Advances in computer technology and Internet networks have encouraged
Internet users to communicate more rapidly. While innocent users gain huge benefits from such global
advancement, criminals have used the same technology to extend their activities and influence. Crimes
committed using the Internet easily bypass national borders and criminals fully exploit this. At present,
private security is threatened by faceless criminals.
The transnational nature of cybercrime hampers its detection and makes investigation and prosecution
more difficult because investigation often requires tracing criminal activity and its effects through a varietyof Internet service providers or private companies, sometimes across national borders, which may result indifficult questions of jurisdiction and sovereignty. Accordingly, international and regional co-operation would
be an effective approach to assist domestic law enforcement to fight cybercrime.
Cyberspace becomes a newly powerful channel for criminals to commit illegal activities such as on-line
fraud, phishing, 419 scams, identity theft, defamation, child pornography, on-line gambling and hacking or
cracking. The statistics concerning computer-related offences analysed by the High-Tech Crime Center(HTCC), Royal Thai Police, reveals that from 2006 to 2008, 467 cybercrime cases were prosecuted. A large
number of the offences were defamation, on-line fraud and child pornography.
		
In Thailand, cyber criminals have continuously developed new techniques to escape on-line tracing andpolice investigation. Rapid communication via the Internet allows criminals to network with transnational
syndicates in committing crime in a very short space of time. As a result, techniques for collecting evidence
and proving the accusations at trial are obstacles for police and prosecutors.

B. Offences Reported to the Royal Thai Police
The cybercrime cases that were reported to the Royal Thai Police after the Computer-Related Crime
Act, B.E.2550 came into effect in July 2007 are categorized below.

* Deputy Superintendent, High Tech Crime Center, Royal Thai Police.

87

RESOURCE MATERIAL SERIES No.79

1 Offences against the Confidentiality, Integrity and Availability of Computer Data and Systems
The number of such offences is low but the cost of the damage is high. The criminals employ
sophisticated techniques or technology to prevent tracing by the police. Victims of these offences are thecustomers of Internet banking and online payment services.
2. Computer-Related Forgery and Computer-Related Fraud
These are the most serious category of cybercrime in Thailand. The criminals work mostly in-group andhave no sophisticated disguising techniques. At present, there are some criminal groups from West Africa
using Internet facilities in Thailand to run scams. The Royal Thai Police has set up a task force to combat
these 419 scam groups.
3. Content-Related Offences
Pornographic and child pornographic websites are another category of cybercrime in Thailand. The Royal
Thai Police and the Ministry of Culture have set a committee to monitor the content of websites. If theyfind any websites that contain obscene material or child pornography, the websites must be banned and theoperators reported to the Royal Thai Police for prosecution.

Cybercrime Cases (January 2007 - March 2008)

3

24

27

8

11 3

Defamation
Computer-related fraud
Illegal interception
PornographyChild pornography
Illegal access
Computer-related forgery
Gambling

57
282
Source: High-Tech Crime Center, Royal Thai Police

II. LEGISLATION
A. Computer-Related Crime Act, B.E.2550 (2007)
The Computer-Related Crime Act, B.E.2550 entered into force in July 2007. The Act sets out theoffences against computer-related crime covering hacking, unauthorized access, distributed denial ofservice, viruses/worms, website defacement, Internet fraud, identity theft, forgery, blackmail, gamblingand pornography. It also specifies the authority of competent officials and criminal procedures. The newlegislation has become a powerful tool for officers to allege, search, arrest and bring more offenders before
court than in the past.
There are two chapters in this Act: Chapter One covers substantive offences; Chapter Two addresses
criminal procedure.
Two main offences in Chapter One are enforced. The first are offences against the confidentiality, integrity
and availability of computer systems and computer data. The second category is computer-related offences.
Chapter Two enumerates the competent officials who will lay down the procedural provisions for criminal
investigations and proceedings.
The Minister of the Information and Communication Technology Ministry shall have charge and control ofthis Act and shall have the power to issue Ministerial Regulations for the execution of this Act (Section 4).

88140TH INTERNATIONAL TRAINING COURSE
Participants’ Papers

B. Ministerial Regulations
The Ministerial Regulations that will be issued under this Act are:
1.
2.
3.
4.
5.
6.

Ministerial Regulations regarding summonses of seizure or attachment (Section 19) – issued on 30
November 2007.
Ministerial Regulations regarding a list of undesirable programmes (Section 21) – not to be issued.
Ministerial Regulations regarding a duty of service providers to retain traffic data (Section 26) –enforced on 18 August 2008.
Ministerial Regulations regarding qualifications of competent officials (Section 28).
Ministerial Regulations regarding the form of the identity card of competent officials (Section 30).
Rules on guidelines and procedural methods in arresting, confining, searching, investigating andinstituting criminal prosecution against the offender – to be drafted by the working group of the law
enforcement agency.

C. Comparison of “Convention on Cybercrime: Council of Europe” and “Computer-Related Crime
Act, B.E.2550”
On drafting the Computer-Related Crime Act, B.E.2550, Thailand had studied the Computer Crime Law
or Related Law of other countries, including:- The Electronic Commerce Act 2000 (The Philippines);- The Computer Crime Act 1997 (Malaysia);- The Computer Misuse Act (Singapore);- The Unauthorized Computer Access Law 2000 (Japan);- The Information Technology Act 2000 (India); and- The Convention on Cybercrime: Council of Europe.
The following table shows the comparison between the “Convention on Cybercrime: Council of Europe”
and the “Computer-Related Crime Act, B.E.2550 (2007)”.

Convention on Cybercrime:
Council of Europe

Computer-Related Crime Act, B.E.2550

Definitions

Definitions“Computer system” means any device or a group ofinterconnected or related devices, one or more ofwhich, pursuant to a programme, performs automatic
processing of data.

“Computer system” means a piece of equipment or
sets of equipment units, whose function is integrated
together, for which sets of instructions and working
principles enable it or them to perform the duty ofprocessing data automatically.

“Computer data” means any representation offacts, information or concepts in a form suitablefor processing in a computer system, including a
programme suitable to cause a computer system toperform a function.

“Computer data” means data, statements, or setsof instructions contained in a computer system, theoutput of which may be processed by a computer
system including electronic data, according to the Law
of Electronic Transactions.

“Service provider” means:“Service provider” shall mean:(i) any public or private entity that provides to usersof its service the ability to communicate by means of acomputer system; and(1) A person who provides service to the public withrespect to access to the Internet or other mutualcommunication via a computer system, whether on
their own behalf, or in the name of, or for the benefitof, another person;(ii) any other entity that processes or stores computer
data on behalf of such communication service or usersof such service.

“Traffic data” means any computer data relating to
a communication by means of a computer system,
generated by a computer system that formed apart in the chain of communication, indicating the(2) A person who provides services with respect tothe storage of computer data for the benefit of theother person.
“Computer traffic data” means data related to89
computer system-based communications showing
sources of origin, starting points, destinations,routes, time, dates, volumes, time periods, types ofcomputer system; andcommunication via a computer system, whether on
their own behalf, or in the name of, or for the benefitof, another person;(ii) any other entity that processes or stores computer
data on behalf of such communication service or usersof such service.
(2) A person who provides services with respect to
RESOURCE MATERIALSERIESofNo.79
the storage
computer data for the benefit of theother person.
“Traffic data” means any computer data relating to
a communication by means of a computer system,
generated by a computer system that formed apart in the chain of communication, indicating thecommunication’s origin, destination, route, time, date,size, duration, or type of underlying service.

“Computer traffic data” means data related tocomputer system-based communications showing
sources of origin, starting points, destinations,routes, time, dates, volumes, time periods, types ofservices or others related to that computer system’scommunications.

Offences
Article 2 – Illegal access

Section 5

Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally, the access to the whole or any part of acomputer system without right. A Party may requirethat the offence be committed by infringing security
measures, with the intent of obtaining computer dataor other dishonest intent, or in relation to a computer
system that is connected to another computer system.

Whoever illegally accesses a computer system thathas specific security measures and such security
measures are not intended for his use, shall be liable
to imprisonment for a term not exceeding six months
or to a fine not exceeding ten thousand Baht or toboth.

Article 3 – Illegal interception

Section 8

Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally, the interception without right, madeby technical means, of non-public transmissions ofcomputer data to, from or within a computer system,
including electromagnetic emissions from a computer
system carrying such computer data. A Party may
require that the offence be committed with dishonest
intent, or in relation to a computer system that isconnected to another computer system.

Whoever illegally makes, by any electronic means, aninterception of computer data of another person thatis being transmitted in a computer system and suchcomputer data is not for the benefit of the public or is
not available for other persons to utilize, shall be liable
to imprisonment for a term not exceeding three years
or to a fine not exceeding sixty thousand Baht or toboth.

Article 4 – Data interference

Section 9

1. Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally, the damaging, deletion, deterioration,
alteration or suppression of computer data without
right.

Whoever illegally acts in a manner that causes
damage, impairment, deletion, alteration or addition
either in whole or in part of computer data of otherperson, shall be liable to imprisonment for a term notexceeding five years or to a fine not exceeding one
hundred thousand Baht or to both.

2. A Party may reserve the right to require that the
conduct described in paragraph 1 result in serious
harm.
Article 5 – System interference

Section 10

Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally, the serious hindering without right of
the functioning of a computer system by inputting,transmitting, damaging, deleting, deteriorating,altering or suppressing computer data.

Whoever illegally acts in a manner that causes
suspension, deceleration, obstruction or interferenceof a computer system of another person so that it can
not function normally, shall be liable to imprisonment
for a term not exceeding five years or to a fine notexceeding one hundred thousand Baht or to both.

Article 6 – Misuse of devices

Section 13

1. Each Party shall adopt such legislative and otherWhoever sells or disseminates sets of instructions
developed as a tool used in committing an offence
under Section 5, Section 6, Section 7, Section 8,
Section 9, Section 10 and Section 11 shall be liable to90
measures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally and without right:measures as may be necessary to establish as criminal suspension, deceleration, obstruction or interference
offences under its domestic law, when committed of a computer system of another person so that it canintentionally, the serious hindering without right of not function normally, shall be liable to imprisonment
140TH
INTERNATIONAL
the functioning of a computer
systemby inputting, forTRAINING
a term notCOURSE
exceeding five years or to a fine notParticipants’
Paperstransmitting, damaging, deleting, deteriorating, exceeding one hundred thousand Baht or to both.
altering or suppressing computer data.
Article 6 – Misuse of devices

Section 13

1. Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally and without right:

Whoever sells or disseminates sets of instructions
developed as a tool used in committing an offence
under Section 5, Section 6, Section 7, Section 8,
Section 9, Section 10 and Section 11 shall be liable toimprisonment for a term not exceeding one year or toa fine not exceeding twenty thousand Baht or to both.

(a) the production, sale, procurement for use, import,
distribution or otherwise making available of:(i) a device, including a computer programme, designed or adapted primarily for the purpose of committing any of the offences established in accordance with
Articles 2 through 5;(ii) a computer password, access code, or similar databy which the whole or any part of a computer system
is capable of being accessed,with intent that it be used for the purpose of committing any of the offences established in Articles 2through 5; and(b) the possession of an item referred to in paragraphs(a) (i) or (ii) above, with intent that it be used for the
purpose of committing any of the offences establishedin Articles 2 through 5. A Party may require by law
that a number of such items be possessed before
criminal liability attaches.
2. This article shall not be interpreted as imposing
criminal liability where the production, sale, procurement for use, import, distribution or otherwise
making available or possession refer red to inparagraph 1 of this article is not for the purpose ofcommitting an offence established in accordance with
Articles 2 through 5 of this Convention, such as forthe authorized testing or protection of a computer
system.
3. Each Party may reserve the right not to apply paragraph 1 of this article, provided that the reservation
does not concern the sale, distribution or otherwise
making available of the items referred to in paragraph
1 (a) (ii) of this article.
Article 7 – Computer-related forgery

Section 14

Each Party shall adopt such legislative and othermeasures as may be necessary
to establish as criminal offences under its domestic
law, when committed intentionally and without right,
the input, alteration, deletion, or suppression ofcomputer data, resulting in inauthentic data with theintent that it be considered or acted upon for legal
purposes as if it were authentic, regardless whether
or not the data is directly readable and intelligible.
A Party may require an intent to defraud, or similar
dishonest intent, before criminal liability attaches.

Whoever commits any offence of the following acts
shall be liable to imprisonment for not more than five
years or a fine of not more than one hundred thousandbaht or both:

Article 8 – Computer-related fraud(3) that involves import to a computer system of any
computer data related with an offence against theKingdom’s security under the Criminal Code;91

Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally and without right, the causing of a loss of(1) that involves import to a computer system offorged computer data, either in whole or in part, or
false computer data, in a manner that is likely to cause
damage to that third party or the public;(2) that involves import to a computer system of false
computer data in a manner that is likely to damage thecountry’s security or cause a public panic;(4) that involves import to a computer system of any
computer data of a pornographic nature that is publicly
accessible;forged computer data, either in whole or in part, or
intent that it be considered or acted upon for legal false computer data, in a manner that is likely to cause
purposes as if it were authentic, regardless whether damage to that third party or the public;
or not the data is directly readable and intelligible.
A Party may require an intent to defraud, or similar (2) that involves import to a computer system of false
computerdataNo.79
in a manner that is likely to damage the
RESOURCE
MATERIAL
SERIESdishonest intent, before criminal liability
attaches.
country’s security or cause a public panic;
Article 8 – Computer-related fraud
Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally and without right, the causing of a loss ofproperty to another person by:(a) any input, alteration, deletion or suppressionof computer data, (b) any interference with thefunctioning of a computer system, with fraudulent
or dishonest intent of procuring, without right, an
economic benefit for oneself or for another person.
Article 11 – Attempt and aiding or abetting
1. Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally, aiding or abetting the commission of anyof the offences established in accordance with Articles
2 through 10 of the present Convention with intent
that such offence be committed.

(3) that involves import to a computer system of any
computer data related with an offence against theKingdom’s security under the Criminal Code;(4) that involves import to a computer system of any
computer data of a pornographic nature that is publicly
accessible;(5) that involves the dissemination or forwarding ofcomputer data already known to be computer data
under (1) (2) (3) or (4).

The attempt, abetments or aiding is not stipulated inthis Act because the Criminal Code can be applied.
Section 15
Any service provider intentionally supporting orconsenting to an offence under Section 14 within acomputer system under their control shall be subject
to the same penalty as that imposed upon a person
committing an offence under Section 14.

2. Each Party shall adopt such legislative and othermeasures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally, an attempt to commit any of the offences
established in accordance with Articles 3 through 5, 7,
8, and 9.1.a and c. of this Convention.
3. Each Party may reserve the right not to apply, inwhole or in part, paragraph 2 of this article.
Article 14 – Scope of procedural provisions

Section 18

1. Each Party shall adopt such legislative and othermeasures as may be necessary to establish thepowers and procedures provided for in this section
for the purpose of specific criminal investigations orproceedings.

Within the power of Section 19 and for the benefit of
an investigation, if there is reasonable cause to believethat there is the perpetration of an offence under
this Act, then a relevant competent official shall haveany of the following authorities only as necessary to
identify a person who has committed an offence inorder to:

2. Except as specifically provided otherwise in Article
21, each Party shall apply the powers and proceduresreferred to in paragraph 1 of this article to:(a) the criminal offences established in accordancewith Articles 2 through 11 of this Convention;(b) other criminal offences committed by means of acomputer system; and(c) the collection of evidence in electronic form of acriminal offence.

(1) Issue an inquiry letter to any person related to thecommission of an offence under this Act or summon
them to give statements, forward written explanations or any other documents, data or evidence in anunderstandable form;(2) Call for computer traffic data related to communications from a service user via a computer system orfrom other relevant persons;

3. (a) Each Party may reserve the right to apply themeasures referred to in Article 20 only to offences
or categories of offences specified in the reservation,
provided that the range of such offences or categories
of offences is not more restricted than the range of(3) Instruct a service provider to deliver to a relevant
competent official service users-related data that must
be stored under Section 26 or that is in the possession
or under the control of a service provider;offences to which it applies the measures referred
to in Article 21. Each Party shall consider restricting
such a reservation to enable the broadest application
92of the measure referred to in Article 20.

computer system, in which there is a reasonable cause
to believe that offences under this Act have beencommitted if that computer is not yet in the possession of the competent official;(b) Where a Party, due to limitations in its legislation(5) Instruct a person who possesses or controls(4) Copy computer data, computer traffic data from afrom other relevant persons;
3. (a) Each Party may reserve the right to apply the (3) Instruct a service provider to deliver to a relevantmeasures referred to in Article 20 only to offences competent official service users-related data that mustor categories of offences specified
in INTERNATIONAL
the reservation, beTRAINING
stored underCOURSE
Section 26 or that is in the possession
140TH
provided that the range of such offences or
categories or under
the control of a service provider;
Participants’
Papersof offences is not more restricted than the range of (4) Copy computer data, computer traffic data from aoffences to which it applies the measures referred
to in Article 21. Each Party shall consider restricting
such a reservation to enable the broadest applicationof the measure referred to in Article 20.

computer system, in which there is a reasonable cause
to believe that offences under this Act have beencommitted if that computer is not yet in the possession of the competent official;(b) Where a Party, due to limitations in its legislation
in force at the time of the adoption of the present
Convention, is not able to apply the measures referred
to in Articles 20 and 21 to communications beingtransmitted within a computer system of a service
provider, which system:(5) Instruct a person who possesses or controls
computer data or computer data storage equipment
to deliver to the relevant competent official thecomputer data or the equipment pieces;(i) is being operated for the benefit of a closed groupof users; and(ii) does not employ public communications networks
and is not connected with another computer system,
whether public or private, that Party may reserve theright not to apply these measures to such communications. Each Party shall consider restricting such areservation to enable the broadest application of themeasures referred to in Articles 20 and 21.

(6) Inspect or access a computer system, computer
data, computer traffic data or computer data storage
equipment belonging to any person that is evidenceof, or may be used as evidence related to, the commission of an offence or used in identifying a person who
has committed an offence, and instruct that person
to send the relevant computer data to all necessary
extent as well;(7) Decode any person’s computer data or instruct any
person related to the encryption of computer data to
decode the computer data or cooperate with a relevant
competent official in such decoding;(8) Seize or attach the suspect computer system forthe purpose of obtaining details of an offence and theperson who has committed an offence under this Act.
Section 19
The power of authority of the relevant competent
official under Section 18 (4), (5), (6), (7) and (8), is
given when that competent official files a petition to a
court with jurisdiction for an instruction to allow therelevant competent official to take action.
However, the petition must identify a reasonableground to believe that the offender is committing or
going to commit an offence under the Act as well as
the reason of requesting the authority, including thecharacteristics of the alleged offence, a description of
the equipment used to commit the alleged offensive
action and details of the offender, as much as this canbe identified. The court should adjudicate urgently
such aforementioned petition.
When the court approves permission, and before
taking any action according to the court’s instruction,
the relevant competent official shall submit a copy of
the reasonable ground memorandum to show that an
authorization under Section 18 (4), (5), (6), (7) and (8),must be employed against the owner or possessor of
the computer system, as evidence thereof. If there
is no owner of such computer thereby, the relevant
competent official should submit a copy of said memorandum as soon as possible.
In order to take action under Section 18 (4), (5), (6),(7) and (8), the senior officer of the relevant competent official shall submit a copy of the memorandum
about the description and rationale of the operation to93
a court with jurisdiction within forty eight (48) hours
after the action has been taken as evidence thereof.
When copying computer data under Section 18 (4),and given that it may be done only when there is athe computer system, as evidence thereof. If there
is no owner of such computer thereby, the relevant
competent official should submit a copy of said memorandum as soon as possible.
RESOURCE MATERIAL SERIES No.79
In order to take action under Section 18 (4), (5), (6),(7) and (8), the senior officer of the relevant competent official shall submit a copy of the memorandum
about the description and rationale of the operation toa court with jurisdiction within forty eight (48) hours
after the action has been taken as evidence thereof.
When copying computer data under Section 18 (4),and given that it may be done only when there is areasonable ground to believe that there is an offence
against the Act, such action must not excessively
interfere or obstruct the business operation of thecomputer data’s owner or possessor.
Regarding seizure or attachment under Section 18(8), a relevant competent official must issue a letterof seizure or attachment to the person who owns or
possesses that computer system as evidence. Thisis provided, however, that the seizure or attachment
shall not last longer than thirty days. If seizure orattachment requires a longer time period, a petition
shall be filed at a court with jurisdiction for the extension of the seizure or attachment time period. The
court may allow only one or several time extensions,however altogether for no longer than sixty days.
When that seizure or attachment is no longer necessary, or upon its expiry date, the competent official
must immediately return the computer system thatwas seized or withdraw the attachment.
The letter of seizure or attachment under paragraph
one shall be in accordance with a Ministerial
Regulations.
Article 17 – Expedited preservation and partial
disclosure of traffic data
1. Each Party shall adopt, in respect of traffic data thatis to be preserved under Article 16, such legislativeand other measures as may be necessary to:(a) ensure that such expeditious preservation of traffic
data is available regardless of whether one or more
service providers were involved in the transmission ofthat communication; and(b) ensure the expeditious disclosure to the Party’s
competent authority, or a person designated by that
authority, of a sufficient amount of traffic data toenable the Party to identify the service providers
and the path through which the communication wastransmitted.
2. The powers and procedures referred to in thisarticle shall be subject to Articles 14 and 15.

Section 26
A service provider must store computer traffic data
for at least ninety days from the date on which thedata is input into a computer system. However, if
necessary, a relevant competent official may instructa service provider to store data for a period of longer
than ninety days but not exceeding one year on a
special case by case basis or on a temporary basis.
The service provider must keep the necessary
information of the service user in order to be able toidentify the service user from the beginning of theservice provision, and such information must be kept
for a further period not exceeding ninety days after
the service agreement has been terminated.
The types of service provider to whom the provisions
under paragraph one shall apply and the timing of
this application shall be established by a Minister andpublished in the Government Gazette.
A service provider who fails to comply with thisSection, shall be liable to a fine not exceeding five
hundred thousand Baht.

Article 22 – Jurisdiction

Section 17

1. Each Party shall adopt such legislative and otherWhoever commits an offence pursuant to this Act
outside the Kingdom, whether

94
measures as may be necessary to establish jurisdic-

tion over any offence established in accordance with
Articles 2 through 11 of this Convention, when the(1) the offender be a Thai person, and there be arequest for punishment by the Government of the2. The powers and procedures referred to in thisarticle shall be subject to Articles 14 and 15.

under paragraph one shall apply and the timing of
this application shall be established by a Minister andpublished in the Government Gazette.

140TH INTERNATIONALATRAINING
COURSE
service provider
who fails to comply with thisParticipants’
PapersSection, shall be liable to a fine not exceeding five
hundred thousand Baht.
Article 22 – Jurisdiction

Section 17

1. Each Party shall adopt such legislative and othermeasures as may be necessary to establish jurisdiction over any offence established in accordance with
Articles 2 through 11 of this Convention, when theoffence is committed:(a) in its territory; or(b) on board a ship flying the flag of that Party; or(c) on board an aircraft registered under the laws ofthat Party; or(d) by one of its nationals, if the offence is punishable
under criminal law where it was committed or if theoffence is committed outside the territorial jurisdiction of any State.

Whoever commits an offence pursuant to this Act
outside the Kingdom, whether(1) the offender be a Thai person, and there be arequest for punishment by the Government of thecountry where the offence has occurred or by the
injured person ; or(2) the offender be an alien, and the Royal Thai
Government or a Thai person be the injured person,
and there be a request for punishment by the
injured person, shall be punished in the Kingdom.

2. Each Party may reserve the right not to apply or toapply only in specific cases or conditions the jurisdiction rules laid down in paragraphs 1.b through 1.d ofthis article or any part thereof.
3. Each Party shall adopt such measures as may
be necessary to establish jurisdiction over theoffences referred to in Article 24, paragraph 1, of thisConvention, in cases where an alleged offender ispresent in its territory and it does not extradite him or
her to another Party, solely on the basis of his or her
nationality, after a request for extradition.
4. This Convention does not exclude any criminal
jurisdiction exercised by a Party in accordance with its
domestic law.
5. When more than one Party claims jurisdiction overan alleged offence established in accordance withthis Convention, the Parties involved shall, whereappropriate, consult with a view to determining themost appropriate jurisdiction for prosecution.

III. MEASURES
A. Measures to Combat Cybercrime
1. Domestic Approach(i) Prevention• Promote public understanding of the cybercrime situation and teach the public how to protect itself
from cyber criminals.
• Enlist the co-operation of the private sector and the public in reporting illegal websites, online fraud,etc. and in the investigation process.
• Force the regulations enactment and enforce the Computer-Related Crime Act.
(ii) Suppression• Provide investigation knowledge for local police, so that they can rapidly respond to cybercrime cases.
• Improve the investigation techniques and the skills of cybercrime investigators to specialist standard
and the level accepted by the international law enforcement agencies.

95

RESOURCE MATERIAL SERIES No.79

2. International Approach• Participate in international activities, meetings, training, etc. to share intelligence and experience.
• Co-operate with international law enforcement agencies and assist in solving cybercrime cases uponrequest. At this moment, the Royal Thai Police has assigned officers from High-Tech Crime Center tobe contacts for ASEAN 24/7 High-Tech Crime, Cybercrime Technology Information Network System(CTINS) and other law enforcement agencies.

B. Our Vision in Combating Cybercrime
1. Domestic Approach• Secure the co-operation of the private sector and public to provide information, advance technology
and funding for combating cybercrime.
• Train police to achieve excellent capability in cybercrime investigation techniques.
• Develop a knowledge-base and a case management system and provide it to the public and other law
enforcement agencies.
2. International Approach• Develop co-operation among international law enforcement agencies by supporting international
workshops and meetings.
• Assign a contact person for information exchange among international law enforcement agencies.

IV. ACTUAL CASE
A. 419 Scam
1. Situation
In June 2008, a Thai bank complained to the High-Tech Crime Center, Royal Thai Police, that its logo
and a fake name given as its bank manager were used in spam mail. Some customers requested the bank toclarify that mail.
Spam mail informed the receiver that he or she had won US$1,000,000 and the winner must transfer themoney for tax payment and service charges including a transfer fee of about US$10,000 to receive this fund.
The bank’s logo and the fake name of its bank manager were attached in the mail.
2. Investigation
The Royal Thai Police set up a task force to investigate the case led by the Central Investigation
Bureau together with the Immigration Bureau, Foreign Affairs Division and High-Tech Crime Center. On
investigating, the task force found following facts:••••

Three e-mail addresses were used in sending the spam mail;The bank manager’s name was fake;A bank account was opened to receive the transferred money. The owner was a Thai woman.
The IP address of every spam mail came from the same place. With co-operation from the Internet
service provider company, the team found the location at an Internet café in Bangkok.

A surveillance team investigated the owner of the Internet café. He informed them that an African groupused his Internet café daily. The team reported that about 30 African people stayed in accommodation aroundthat area, some in the same building as the Internet café.
Covert officers were set to work as staff of the café and manually logged the usage of computers there.
The syndicate only used computers to send e-mail, not to surf the Internet.
A court order was issued to do a real time interception of traffic and content data from the Internet café.
Log recorders and analysis devices were set at the gateway of the Internet café network.
On viewing the traffic data, the task force compared log records including contents and manual logs to
identify the activity of the syndicate. Traffic data proved that syndicates used the café for sending spam mailand committing fraud.

96

140TH INTERNATIONAL TRAINING COURSE
Participants’ Papers

3. Operation
The task force submitted a warrant of arrest for 13 suspects including one Thai woman. The court issued
the warrants on 24 July 2008 and the operation was set.
About 200 police officers (uniformed and undercover) were deployed to three target areas. Eighteen
suspects (17 Ghanaians and 1 Thai) were arrested.
4. Key to Success
The success of this operation was due to co-operation among the law enforcement agencies and privatecompanies.
The co-operation of police officers from different units caused this operation to succeed. Their intention
in combating cybercrime led them to share all information and to learn from each other.
SRAN Security Center provided the log recorders and traffic data analysis at the Internet café free ofcharge. It caused the task force to prove and present all evidence to the court for the issuing of the warrants
of arrest.
Co-operation from Western Union (providing transaction data from the victims to the suspects) led thetask force to indentify the location of the group leader.

97

REPORTS OF THE COURSEGROUP 1ISSUES AND MEASURES CONCERNING THE LEGAL FRAMEWORKTO COMBAT CYBERCRIME
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Mr. Syed Abbas Ahsan
Mr. Vijith Kumara Malalgoda
Mr. Sergio Gardenghi Suiama
Mr. Bafi Nlanda
Mr. Saleh Mohammad Altawalbeh
Mr. Santipatn Prommajul
Mr. Koji Sakamoto
Mr. Nozomu Suzuki
Deputy Director Takeshi Seto
Professor Jun Oshino
Professor Junichiro Otani
Professor Tae Sugiyama

Advisers(Pakistan)(Sri Lanka)(Brazil)(Botswana)(Jordan)(Thailand)(Japan)(Japan)(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

Legal Notice: This report has been written on behalf of the group by the Chairperson and the Rapporteur on the basis of
information supplied by the participants of the course. Neither UNAFEI nor any person acting on its behalf is responsible
for the contents and information contained in this Report. The views expressed in this publication do not necessarily reflect
the official views of UNAFEI or any person acting on its behalf. The opinions given by individual participants are based on
the information available to them, their understanding of the same, and are not representative of the official stance of theirrespective countries.

I. INTRODUCTION
Group 1 started its discussion on 16 October 2008. The group elected, by consensus, Mr. Ahsan aschairperson, Mr. Malalgoda as co-chairperson, Mr. Suiama as Rapporteur, and Mr. Nlanda as Co-rapporteur.
The group, following its assigned topic, “Issues and Measures concerning the Legal Framework to Combat
Cybercrime”, agreed to conduct the proceedings in accordance with the following agenda:
1. Issues and measures relating to the criminalization of cybercrime;
2. Legal issues relating to the procedural law related to cybercrime, including admissibility of digital
evidence;
3. Challenges in combating trans-border cybercrime, including issues of jurisdiction and international
co-operation.

II. SUMMARY OF THE DISCUSSIONS
A. Substantive Criminal Law in Respective Countries Concerning Cybercrime, including Evaluationaccording to the Convention on Cybercrime
The group decided first to identify which offences have been criminalized by the countries as requiredby the Convention on Cybercrime. The group considered the Convention as a guideline establishing theinternational standards regarding this issue. Each participant of the Course had received a handout in orderto clarify what offences are already included in their respective laws.
According to the participants, the current substantive criminal law of the respective countries regarding
cyercrime is shown in the following table:

Country

Bangladesh
Botswana

98

Illegalaccess to
a computer
systemIllegalinterceptionof data

Illegal datainterference

Yes
Yes

Yes
Yes

Yes
Yes

IllegalIllegalproduction Computer Computer
systemand-relatedrelatedinterdistribution fraud
forgery
ferenceof devices
Yes
Yes

Yes
Yes

Yes
Yes

Yes
Yes

Child
pornography

Copyright
violations

Yes
Yes

Yes
Yes

140TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

BrazilHong Kong
Indonesia
Japan
JordanMexicoPakistan
Philippines
Sri Lanka
ThailandCountry
Bangladesh
Botswana
BrazilHong Kong
Indonesia
Japan
JordanMexicoPakistan
Philippines
Sri Lanka
ThailandPartially
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Partially
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Partially
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

No
Yes
Yes
Partially
Yes
Yes
Yes
Yes
Yes
Yes

Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
No
Yes

Yes
Yes
Yes
Partially
Yes
Yes
Yes
No
No
Yes

Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes

Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Identitytheft

Illegalgambling

Cyber
Terrorism1

SpamLibel and
false information

Racism andHate Speech

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

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

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

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

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

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

The Chairperson, following the agenda, asked the group to discuss their national legislation regarding
cybercrime. From the discussions, it was established that some countries have specific legislation on
this subject, but some States do not have a separate legal framework. In such cases, they are using theirprevailing legislation with amendments catering for illegal and harmful use of computer systems.
Of all the participating countries, Bangladesh, Botswana, Indonesia, Pakistan, Sri Lanka and Thailand
have specific legislation against cybercrime. Brazil, Japan, Jordan, Hong Kong, Mexico and the Philippines do
not have a specific legislation on cybercrime.
In Bangladesh, the Information and Communication of Technology Act (2006) covers the offences definedby the Convention on Cybercrime. According to the participant from this country, computer related fraud
and forgery could be handled under the provisions of the Penal Code.
In Botswana, most of the offences have been criminalized by a specific act, except the violation of
copyright. However, there is another act covering copyright offences, although this act does not mention
offences committed on the Internet. The law is silent regarding electronic documents. Child pornography iscriminalized (including possession).
In Pakistan, the Prevention of Electronic Crimes Ordinance was enacted to deal with cybercrime andcriminalizes all the offences listed in the handout except child pornography and infringement of copyright.
However, pornography of all kinds is criminalized in Pakistan through the special law against pornography;
therefore, offences related to child pornography defined in the Convention are already covered in the existing
legal framework. In addition, Pakistan has criminalized illegal access to computer data as a separate offence.
Furthermore, the law does not criminalize copyright infringement as this is covered in a separate law.
In Sri Lanka, almost all offences defined by the Cybercrime Convention, except computer-related fraud
and forgery, have been criminalized. Electronic transactions and documents are considered valid according
1 There is no global consensus about the definition of the term “cyber-terrorism”. Therefore, the table has only considered thedefinition of “terrorism” provided by the national legislations.

99

RESOURCE MATERIAL SERIES No.79

to Sri Lankan law. However, the Penal Code already covers the offences of fraud and forgery. In addition, theEvidence Ordinance accepts computer-generated documents as evidence; hence it is possible to prosecutecomputer-related fraud and forgery as well. Violations of copyright and patents are criminalized and havespecific provisions in the law. The Penal Code includes child pornography as a crime, including possession,
distribution, sexual abuse and publication. However, there is no specific provision for such crimes whencommitted on the Internet.
In Thailand, all offences defined in the Cybercrime Convention except child pornography and copyrightviolations have been criminalized under the Computer Crime Act. Child pornography (possession included)
is an offence under Child Protection Act and copyright violations are dealt under the Copyrights Act.
In Brazil, the Penal Code, the Statute of Childhood and Youth and two Federal Acts are sufficiently broad
to cover most of the offences defined in the Convention on Cybercrime, except misuse of devices and accessand interference in private systems.
In Mexico, the Penal Code covers most of the offences defined in the Convention.
In Indonesia, all the offences defined by the Convention are already criminalized.
In Japan, almost all of the offences are already covered by the Japanese Penal Code or special laws.
There is a specific law for copyright offences. Regarding child pornography, the possession of images is notcriminalized. Moreover, the production and distribution of computer viruses are not criminalized at present.
Misuse of devices is partially covered by national criminal legislation.
In Jordan there are no specific laws, but the Penal Code has been modified to include computer crimes.
Moreover, there is a specific law for electronic transactions. Furthermore, draft legislation is under review in
the Parliament, aiming at addressing all the offences as defined in the Convention on Cybercrime. Presently,
the legal framework is not sufficiently broad to cover all these offences.
In the Philippines, the E-Commerce Act criminalizes only hacking and piracy.
In Hong Kong most of the offences identified under the convention are criminalized under the Crime
Ordinance, except child pornography and copyright violations. Child pornography is an offence under
Publication of Child Pornography Act and copyright violations are criminalized under the Copyright Ordinance.
After the overview of the respective legal frameworks, the Chairperson proposed a thorough analysis of eacharticle of the Convention, aiming at clarifying any ambiguity regarding the interpretation of the text of the treaty.
Beginning with Article 2, the group debated whether the criminalization of illegal access to a standalone
computer (not connected to a network system) should remain optional or be mandatory for the States
Parties. Mr. Sakamoto argued that the law in Japan does not consider mere access to a standalone computera criminal matter, since mere data access is not criminalized under any circumstances. Mr. Ahsan, on theother hand, was of the opinion that the Convention makes it mandatory for all States Parties to criminalize
illegal access to standalone computers. Prof. Oshino, while referring to the Convention, explained that
Article 2 makes it mandatory to criminalize illegal access to a computer system, connected to a network;
however, the Convention differentiates between a computer connected to a network and a standalone
computer in the article, and provides an option to the States to criminalize only the first situation. The groupagreed to the explanation given by Prof. Oshino, as the wording of the article allows countries to restrict
their legislation to computer systems connected to another system through a network.
Professor Oshino inquired about the situation in different countries in respect of offences with thefollowing conditions established by Article 2:
1. Committed by infringing security measures;
2. With the intent of obtaining computer data; and3. In relation to a computer system that is connected to another computer system.

100140TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

Mr. Ahsan, Mr. Nlanda, Mr. Saleh and Mr. Malalgoda declared that Pakistan, Botswana, Jordan and Sri
Lanka, respectively, do not attach any conditions to the criminalization of illegal access to a computer
system. Mr. Prommajul said that in Thailand, the law requires the first condition to be satisfied. Mr. Suiama
noted that in Brazil, the second and third conditions have to be established for criminal sanctions. Mr. Suzuki
explained that in Japan, the first and third conditions should be satisfied.
The group further discussed criminalizing illegal gambling, cyber-terrorism, spamming, libel, slander,racism and hate speech. The group did not arrive at a definite answer on these issues and decided to takefurther advice from the Visiting Expert Prof. Marco Gerke. Mr. Ahsan, the Chairperson, concluded on behalfof the group that individual states should be allowed to legislate on these issues according to their own
standards of criminal law. This conclusion was also based on the differing constitutional obligations of thestates with reference to the rights of their citizens.

B. Visiting Expert’s Opinion
To take advantage of the presence of the Visiting Expert, Prof. Marco Gerke, the Chairperson proposedthat the session could be dedicated to the discussion of complex issues, on which the group could not cometo a definite conclusion. Mr. Ahsan further elaborated that issues thus raised could be put to Prof. Gerke
to take his guidance on these questions. The proposal was accepted by the group and the discussion was
focused on issues on which the group sought assistance of the Visiting Expert.
Mr. Suiama explained that the most important issue for him was jurisdiction in cybercrime, whereby we
can use three approaches:
A. Exercising extra-territorial jurisdiction, but this will raise the problems of sovereignty and breach ofinternational law;
B. International co-operation through mutual legal assistance treaties or multilateral treaties like theCouncil of Europe Convention on Cybercrime; however, this would require dual criminality and theprocess will be prone to unnecessary delays;
C. Obliging the local offices of transnational companies to co-operate with the Law Enforcement Agencies.
Seconding the point of Mr. Suiama, Mr. Sakamoto proposed that the following questions should be raisedby the group for Prof. Gerke on this issue:
1. Comparing the options of exercising jurisdiction vs. international co-operation; as cybercrime is aborderless crime and transcends international boundaries, how do law enforcement agencies exercise
jurisdiction and what is the scope of international co-operation?
2. If the offender is in one country and the victim is in another country, is it possible for the country inwhich the victim resides to claim jurisdiction? And what if a service based in a country is focused onclients based in other countries?
3. If a service provider’s office is located in a country, would it be advisable for the country to oblige suchservice provider to share data, e.g. the IP address of its users?
The criminalization of spam, libel and false information were also discussed by Mr. Prommajul and Mr.
Nlanda, and then referred to the visiting expert as two separate questions:4. What was the opinion of the Visiting Expert on the criminalization of spam?
5. Should libel and false information be criminalized with reference to cybercrime?
Additionally, Mr. Ahsan suggested that Dr. Gercke be requested to explain issues of criminalization ofillegal access to data and to take his opinion on illegal access to standalone computers as well. The groupalso referred the issue of remote access tools used by law enforcement agencies. To this end the following
questions were formulated:

101

RESOURCE MATERIAL SERIES No.79

6. Illegal Access to a computer in the convention does not include illegal access to data. The Convention
also makes illegal access to a standalone computer an optional offence. What was the opinion of theExpert on these two issues?
7. What was the opinion of the Visiting Expert on the use of remote access tools by Law Enforcement
Agencies?
The response of the Visiting Expert Dr. Marco Gercke, in the same order as the questions raised, is asfollows:
1. The international co-operation approach is a better option, either directly or through the 24/7 Contact
Point. Using the 24/7 Contact Point is a faster mode and the Contact Point will have all the resources
and knowledge to reach the relevant person and get the necessary information and evidence at theearliest possible time. This approach has better chances of enforcement, considering that getting
evidence from foreign companies, conducting investigations outside its territorial jurisdiction orarresting a suspect in a foreign country may not be easy through other means and may infringeinternational law. Furthermore, co-operation will not be voluntary and forthcoming to a foreign law
enforcement agency but a local law enforcement agency will be better placed to enforce laws in its own
jurisdiction.
2. It is possible to establish jurisdiction on the basis of the passive personality principle. Moreover, to resolve
issues relating to jurisdiction, it is necessary to establish minimum standards of criminalization for all
countries and also to improve international co-operation in these crimes.
3. It would not be very effective to oblige the service provider to share data and information because insome instances the service provider might just decide to close its office and leave the country. It could
be more functional to use international co-operation in these matters.
4. The criminalization of spam in general is not advisable. A good example, however, is the law regarding
spam in the United States, where only hiding one’s identity or using spam for illegal purposes is
considered a criminal offence.
5. On the issue of libel, slander and false information, it would be better to look at the general criminallaw provisions and follow the same standards, noting however, that it is better to have civil remedies
for such acts as applied in many countries.
6. Regarding illegal access to data, it is included in the illegal access to a system. However, as we could
see from the Hong Kong example, in which a technician was given a computer to repair and copied
information, it might be necessary to criminalize the illegal collection and copying of data. Although
it is preferable to criminalize illegal access to standalone computers, in some jurisdictions that is notconsidered an offence, so a failure to criminalize would not be a serious deficiency in the law.
7. Regarding the use of remote investigative tools, in certain cases the use of such tools may be the only
way to investigate a crime; therefore, the use of such tools should not be completely barred. It shouldbe permitted according to the law of a particular jurisdiction defining the limits of the use of such tools.

C. Issues and Challenges faced by Countries concerning Procedural Law, Jurisdiction andInternational Co-operation
The group briefly looked at the procedural law relating to cybercrime in the participating countries.
Procedural laws are available in most countries that support law enforcement agencies to investigate
cybercrime, especially the general procedure on search and seizure, expedited preservation, and real timecollection and interception of computer data. Most countries do not have any specific procedure on using
remote investigation tools, identification requirements for Internet users, disclosure obligations or dataretention obligations. The current procedural law of the respective countries regarding cybercrime is shownin the following table:

102

140TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

RealUse ofReal time
time
SeizureID
remoteintercollecof
requireinvestiception
tion
computermentgationof contentsof traffic
data
tools
data
data
Yes
Yes
Yes
No
No
Yes
Yes
No
No
No
Yes
No
Yes
No
Partially
Yes
Yes
Yes
Yes
No
Yes
Yes
Yes
Yes
Partially
Yes
Yes
Yes
No
No
Yes
No
No
Not clarified
Yes
Yes
Yes
Yes
Partially
No
Yes
Yes
Yes
No
No
No
No
No
No
No

Country

Expeditedpreservation ofcomputerdata

Searchforcomputerdata

Bangladesh
Botswana
BrazilHong Kong
Indonesia
Japan
JordanMexicoPakistan
Philippines

Yes
Yes
No
No
Yes
Yes
Not clarified
Yes
No
No

Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No

Sri Lanka

Yes

Yes

Yes

Yes

Yes

No

Thailand

Yes

Yes

Yes

Yes

Yes

No

Disclosure
obligationsofencryption
keys

Data
retention
obligation

No
No
No
No
Yes
No
Not clarified
No
Yes
No

Yes
No
No
No
Partially
No
Yes
No
Yes
No

No

No

No

Yes

Yes

Yes

The group discussion was opened by the Chairman with a question about whether it is possible toinvestigate and to prosecute a person for illegal content discovered during a search and seizure process
which content was not included in the scope of the judicial warrant? After analysing the issue, the groupconcluded that in fact such a discovery will not be in violation of the warrant, and criminal proceedings canbe initiated against the person based on the discovery of incriminating content.
Mr. Ahsan then drew the attention of the group towards the issue of expedited preservation of data. Mr.
Saleh stressed the necessity to have specific provisions for search and seizure and preservation of data as suchtools are indispensible for cybercrime investigations. Mr. Malalgoda informed the group that Sri Lankan law
states that police officers can enforce expedited preservation data for seven days. Mr. Sakamoto added that, inJapan, the process to obtain a search warrant is very expeditious, but it is still advisable to have a provision for
the expedited preservation of evidence due to the fluid nature of evidence and data. The group agreed to theimportance of the provision for expedited preservation of data and recommended that such a provision should
be considered for legislation as evidence in cyberspace can be lost, altered or deleted with much ease.
The Chairman then requested the group members to give their opinion on the issue of admissibility ofcopied data in the courts and use of data available on websites as evidence. Giving the example of Pakistan,
he said that specific changes have been made in the evidence laws in Pakistan to bring electronic evidence
in digital format on par with other kinds of evidence; for this the Electronic Transactions Ordinance has
established rules and standards of admissibility. Mr. Sakamoto in this regard mentioned that the law in Japanhas provisions of search and seizure of hardware, but the law does not stipulate mere copying of digital
evidence. Secondly, theoretically, data published on websites can be admissible, but it is advisable that webbased data should be duly verified by the service providers who host such data. Mr. Suiama emphasizedthat we have to differentiate between published content data available on websites, which can be collected
directly by a forensic expert, and traffic data or communication records for which verification can be mademandatory. Mr. Prommajul explained that his experience in prosecuting such cases is that courts require
data be made available in printed form where possible. Moreover, in cases involving hackers or malicious
code attacks, it is necessary to set up an isolated computer network to show to the court how the crime iscommitted. He also added that technically it is possible to download the content of a webpage without theassistance of the ISP, but traffic data can only be obtained from an ISP if they retain such data. Summing up
the discussion of the group, the Chairman said that digital evidence should be admissible in court and thelaw should specify a standard for the admissibility of digital evidence. He further added that the group wasof the opinion that it is preferable that the standards of collection of digital evidence include certification/verification by the service providers to remove ambiguity and doubt about the evidence collected.
The group next moved to the issue of real time collection of traffic data and interception of content
data. Mr. Suiama explained that in Brazil, interception of content data is possible for a maximum period

103

RESOURCE MATERIAL SERIES No.79

of 15 days with court orders, but it is possible to extend the time period. According to Mr. Prommajul, inThailand, interception of content data is possible with court orders and there is no time limitation, butsuch interception can only be initiated in cybercrimes. Mr Suzuki added that in Japan, apart from the court
overview, such methods can be used only in limited offences.
Mr. Ahsan, introducing a new topic, the obligation to retain traffic data, said that in Pakistan, the law statesthat ISPs must retain traffic data for 90 days. There is a penal sanction of six months for not maintaining
traffic data. Mr Suiama added that Brazil has no specific obligation on this matter but the national congress is
discussing a minimum mandatory traffic data retention period of two years. Mr. Suzuki, Mr. Malalgoda and Mr.
Nlanda also pointed out that their countries do not have specific laws for retention of traffic data. In Thailand,
Mr. Prommajul explained, the law states that the ISP must keep traffic data for at least 90 days (and a maximumof one year). If they do not comply with this obligation, they are subject to a fine. The group opined that Article
20 of the Convention supports retention of traffic data and therefore concluded that a legal framework should
consider including an obligation for retention of traffic data for a minimum period of six months.
The next topic that came under discussion was the use of remote investigation tools. Mr. Prommajul
described that it is possible to search and collect evidence remotely and use different remote access tools
to trace criminals. However, over and above the legal issues, it is not possible to assure the integrity ofevidence collected through remote means, since the investigators would have full access to the computer ofthe suspect. It would be difficult to use this data as evidence in a court of law. In terms of interception for the
purpose of investigation only to ascertain the commission of an offence or find the location of the offender,use of key loggers and similar tools could be a good, and possibly the only, option. Mr. Suiama raised
two issues: first, whether we could use the same rules for normal search and seizure in cases of remotesearch and seizure; secondly, is this tool a violation of privacy if performed under judicial supervision? The
Chairperson was of the opinion that normal search and seizure cannot be compared to remote search andseizure as the suspect is unaware of the whole process. Secondly, if normal search and seizure is possible
and the suspect identified, the need for remote search and seizure should not arise. The group agreed thatthe use of such tools is a controversial issue, but considered that sometimes this tool may be the only option
available to the investigators. It was therefore decided that the legal aspects of the use of remote accesstools required further in-depth analysis. Nonetheless, the law must define clear limits for the use of such
remote access tools and the circumstances in which the use is permitted.
The group then moved to the issue of identification when accessing the Internet through a public
terminal. Mr. Ahsan said that in Pakistan, there is no such obligation, and opined that such a system was notuseful as the trend is towards liberalizing access to information technology as it is now the major source ofknowledge and communication. Many other options are available to offenders and by such measures we will
restrict the use of information technology for normal and constructive purposes. Mr. Suiama agreed that it isuseless sometimes to oblige cybercafés to identify their users. On one hand, there is an ideal of free accessto communication and on the other, there is a challenge in identifying crimes and suspects under difficult
circumstances. Mr. Saleh thought it was important to take this measure in order to prevent cybercrime,and identify users at Internet cafés. Mr. Suiama mentioned a possibility of the use of digital identification,
but added that it would result in higher costs. The Chairperson recommended encouraging Internet cafés
to voluntarily use identification as a social responsibility and good practice. Mr. Suiama and Mr. Sakamotoproposed administrative regulation as another option. The group decided that the use of Internet cafés isdifferent around the world, and although it is better to have a process for identification, the matter is left tocountries to take measures suiting their circumstances.
On the issue of disclosure of passwords and encryption keys, Mr. Ahsan said that the law in Pakistan
obliges the suspect to provide the password or key but this law is being criticized as a violation of theconstitution and against the principle of protection against self incrimination. On the other hand, thesupporters of the law argue that any self-incriminating evidence would not be admissible in court andtherefore not used, but such measures would be helpful to obtain other evidence. Mr. Prommajul added thatin Thailand, there is also a similar obligation, but it demands a judicial request. There is a criminal penalty if
the suspect refuses to give the password (a daily fine until he or she complies). Other participants were of
the opinion that a law with the possibility of self incrimination would not be possible in their countries.

104140TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

The final and very important topic discussed by the group was that of jurisdiction and international
co-operation. The discussion was opened by the Chairperson who explained the different types ofjurisdiction and the issues faced by the international community relating to jurisdiction in cybercrime. Mr.
Suiama proposed that it is necessary to go further and try to define some criteria that can be used to define
jurisdiction on the Internet. Mr. Malalgoda stated that we must look at the nature of an offence in order todefine the jurisdiction. Mr. Ahsan stated that the issues of jurisdiction would best be solved if we establish
a proper mechanism of international co-operation. Mr. Suzuki added that there should be some minimum
standards of international co-operation which should be made part of the legal framework of our own
countries. As for exercising jurisdiction, a number of issues should be considered including the place where
the offence was committed, the place of the victim and the ability to conduct investigation. Mr. Suiama wasof the opinion that even when the international community has achieved consensus, there are still someareas of conflict (e.g. hate speech) and it is important to consider these areas. He maintained also that thecountry where the data is located or where the ISP has its headquarters should not be considered the only
criteria to define jurisdiction, since there are many international services provided from the US that areused for nationals to commit crimes. The group agreed on the importance of international co-operation/
co-ordination and recommended that minimum standards of criminalization must be established and followed
to address the issue of dual criminality. In addition, standards for international co-operation in cases ofcybercrime should be formulated and established.

III. CONCLUSIONS
After lively discussions, the group reached the following conclusions:
1. The group agreed that all countries may adopt some basic international standards regarding bothsubstantive and procedural criminal law. Recognize that the Convention on Cybercrime can be used asa good reference for minimum standards that may be adopted by the participating countries. It is also
necessary to move toward some basic rules regarding the collection and admissibility of evidence fromforeign jurisdictions. Three participants wish to include other international conventions (especially humanrights treaties) as minimum standards as well;
2. The group also agreed upon the urgent necessity to improve the investigative and judicial mechanisms
of international co-operation, in order to cope with a phenomenon that is fundamentally transnational. It wasalso suggested that adequate procedural laws may be implemented to assure the expedited preservation ofevidence also when requested by foreign jurisdictions, while the regular measures are being completed;
3. The group understands that it is necessary to improve also the mechanisms of international
co-operation in terms of training and technical aid provided for members of law enforcement agencies.
These training programmes may include members from all the institutions related to the criminal justicesystem;4. Data espionage is not properly covered by Article 2 of the Convention on Cybercrime and according to
the participants an amendment to the text of the treaty should be considered;
5. SPAM is a serious worldwide problem and the group agreed upon the necessity of repressing the
diffusion of unsolicited e-mails. The group suggested that spamming may be considered a crime only incases when the SPAM is used for illegal purposes or when the spammer hides his or her identity;
6. The general principles of substantive law in force in the respective countries may be taken into accountin matters of illegal gambling, identity theft, libel, slander and false information committed in cyberspace;
7. Private communications on the Internet should be protected as a civil right. Therefore, theinterception of this kind of communication as a method of cybercrime investigation should be considered ina restrictive way, subject to judicial review. Under the same circumstances, ISPs should also retain storedcontent data, including communication data;
8. The group agreed that the use of remote investigation tools is a very controversial issue but,105

RESOURCE MATERIAL SERIES No.79

considering that sometimes this tool can be the only option available to the investigators, the legal aspects ofthese methods of investigation should be submitted to an in-depth analysis;
9. The national legislatures should consider including the obligation for retention of traffic data fora minimum period of 180 days, since such time is the minimum reasonable time to identify the point ofInternet access;10. About the requirement of identification of users accessing the Internet through public terminals, thegroup agreed that although the use of these places differ around the world, it is better to adopt measures
to force the owner or the person in charge to identify the users of the terminal. The majority understands
that administrative measures are sufficient to reach this aim. One member argued that it would be sufficient
to encourage public terminals to voluntarily comply with the recommendation, as a matter of social
responsibility;
11. On the issue of mandatory disclosure of encryption keys and passwords by the suspect, the groupconcluded that such measures may be considered self-incriminating and that it is possible to find a way
around these measures; therefore, the group did not support such a legal obligation;
12. Our understanding of jurisdiction as defined in the Convention on Cybercrime is that jurisdiction
can be exercised both from the country where the Internet has been accessed as well as where the content
is hosted. Moreover, the Convention also suggests the principle of jurisdiction based on nationality, even
if the act is not committed in the home country, provided the act is criminalized in both jurisdictions. It isalso recommended that the principle of passive personality, i.e. the use of victim’s jurisdiction, may also be
considered for addition to the Convention;
13. It is important to strengthen the co-operation between local offices of transnational Service Providers
and the authorities in order to identify nationals who use remote located services to commit crimes. One
participant dissented and argued that even in such cases the countries should use the regular instruments ofinternational co-operation.

106

GROUP 2

Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Visiting Expert
Advisers

CHALLENGES AND BEST PRACTICESIN CYBERCRIME INVESTIGATION
Mr. Elcio Ricardo de Carvalho
Mr. Mirza Abdullahel Baqui
Ms. Rita Chun-fa Lam
Mr. Yoichi Omura
Mr. Hiroyuki Ito
Mr. Takuya Matsunaga
Mr. Gilbert Caasi Sosa
Mr. Napoleon Bonaparte
Mr. Jesus Rodriguez Almeida
Professor Yunsik Jang
Professor Shintaro Naito
Professor Ryuji Tatsuya
Professor Tetsuya Sugano
Professor Koji Yamada
Professor Haruhiko Higuchi(Brazil)(Bangladesh)(Hong Kong)(Japan)(Japan)(Japan)(Philippines)(Indonesia)(Mexico)(Korea)(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group 2 started its discussion on 16 September 2008. The group elected, by consensus, Mr. Carvalho
as Chairperson, Mr. Mirza Co-chairperson, Ms. Lam as Rapporteur, and Mr. Omura as Co-rapporteur. The
Group, following its assignment to discuss “Challenges and Best Practices in Cybercrime Investigation”,
agreed to conduct the proceedings in accordance with the following agenda:
1. Initial Information Gathering and Undercover Online Investigations;
2. Tracing and Identifying Criminals;
3. Digital Forensic Analysis of Evidence;
4. Cross-Border Investigative Abilities;
5. International Co-operation in Cybercrime Investigations
For the purpose of this document, the term “participating countries” refers only to the countries
represented in this group.

II. SUMMARY OF THE DISCUSSIONS
A. Initial Information Gathering and Undercover Online Investigations
As for initial information gathering, all participating countries’ law enforcement agencies can directly
receive reports about cybercrime from the victims or from third parties, the methods varying from reporting
directly to the police stations to web pages and email addresses dedicated to receive the reports through theInternet. Japan, Mexico and the Philippines informed the group that they also conduct active cyber patrols insearch of criminal activities on the Internet. In addition, Japan mentioned that the police also receive reports
from the Internet Hotline Center.
The group agreed to recommend that the methods of Initial Information Gathering should be improved by:•••

Educating the population about cybercrime, aiming to increase the number of reports and to improve
the quality of the information contained in those reports;
Improving the channels of communication with the victims, with training on cybercrime for police
officers who receive reports and developing tools to better collect, classify and correlate the reports
received from web pages and email addresses; andIncreasing cyber patrolling activities, being more proactive in monitoring Internet sites in search ofillegal activities, observing the legal limitations in each country.

107

RESOURCE MATERIAL SERIES No.79

Regarding undercover online investigations, there was a great debate about its definition, methods,
limitations and objectives. For the purpose of this group discussion, the concept of undercover online
investigation was agreed to be:“A police officer disguising his or her own identity online or using an assumed identity online for the
purpose of gaining the trust of an individual or organization to obtain information and/or evidence, subject tothe domestic laws and guidelines of the implementing country and law enforcement agency.”
Other aspects which may be included under the concept of implementing undercover online investigation andwhich were discussed by the group but were not agreed upon , given the particularities of each country, were:
•
•
•
•
•
•

Permission to change legal identity;
Clearance to pretend to commit a crime, if necessary, when conducting the investigation;
Ability to use the information obtained while undercover as evidence or just as intelligence
information;
Using an undercover identity to provide to a suspect the opportunity to commit a crime and charge
this person for this action;
In what type of crimes the investigators can use undercover investigation;
The definition of reasonable grounds for conducting undercover investigation.

The participant from the Philippines asked to make it clear that his country does not allow undercoverinvestigators to commit a crime or to give someone else an incentive to commit a crime.
Having in mind the aforementioned aspects, leaving them open for discussion within each country,
respecting their particular traditions and legislation, and considering only the concept the groupagreed upon, it is recommended that the participating countries try to improve their undercover online
investigation capabilities, which is a very important investigative tool.

B. Tracing and Identifying Criminals
The group reached a consensus that the success of the investigation regarding the identification of thecriminal relies upon the availability and the quality of the information provided by Internet service providers
and telecommunication providers to law enforcement agencies. Such information can be traffic data, content
data and subscriber information. Together they may allow the identification of the individual that performed
a given action in a certain time and date. Then the group proceeded to discuss the current situation of thefollowing subtopics in each country:
1. The Relationship between Law Enforcement and ISPs
Data and information held by ISPs and telecoms companies are very important for the investigationof cybercrime. Law enforcement agencies in all the participating countries have contacts with ISPs andtelecoms companies in the form of regular meetings and/or inquiries about individual cases.
But no participating countries have laws to force ISPs and telecoms companies to keep data for a certain
period of time. The situation varies from agreements, relying solely on the goodwill of the providers to keep
the relevant data, to no agreement or regulation whatsoever. Therefore, there is a considerable risk that
ISPs’ data may no longer be available when investigators request it for an investigation.
2. The Relationship between Law Enforcement and Citizens
Information from citizens is also very important for investigation of cybercrimes. In particular,
information from victims can be of high importance at trial.
On the other hand, there are some kinds of cybercrimes, like child pornography, in which we cannot
expect information from a victim. In such cases, information provided by citizens using the Internet is very
valuable in the early stages of an investigation.
3. The Anonymity of Public Access
The anonymous use of public access points, for example Internet cafés and open wireless networks, isa very serious issue, considering that a crime committed using those infrastructures may be impossible

108140TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

to trace back to the perpetrator. Our countries do not have effective countermeasures to deal with thisissue. Some countries mentioned that video surveillance systems are in use, but it was agreed that theidentification of the criminal from such images is still a problem.
As a result of the discussion, we concluded that law enforcement agencies in our countries should have:•••

New laws enforcing data retention by ISPs and telecoms providers for an appropriate period of timeand restricting the disclosure of this information only to law enforcement agencies conducting an
investigation;
Measures for improvement of the relationship between law enforcement and citizens, for example,
education of the population about cybercrime, what is criminalized and how serious cybercrime’s
influence is;
Measures to regulate the operation of public access points, forcing administrators of those services
to confirm the identification of users.

C. Digital Forensic Analysis of Evidence
The group discussed the following subtopics:
1. Specialized Units for Conducting Cybercrime Investigation/Forensics
All the participating countries either already have a specialized unit or have an organization able toconduct cybercrime investigations. It is desirable that in addition to having specialized units, the countries
develop official guidelines for the work of those agencies, especially regarding the collection, preservation,
examination and presentation of digital evidence, in order to have standards and procedures compatible withthe best practices recognized internationally.
The group agreed that it is of the utmost importance that the countries devote resources to the capacitybuilding of those specialized units, with investment in personnel, equipment and training.
Considering the functioning of the specialized units, it is also advisable to follow the recommendations
contained in the International Review of Criminal Policy (No’s 43 and 44): United Nations Manual on thePrevention and Control of Computer-related Crime (1994), articles 198 to 209, in regard to:
1. Administrative and Organizational Security
2. Personnel Security
3. Physical Security
4. Communications-electronic security
5. Hardware and Software Security
6. Operations Security
7. Contingency Planning
2. Availability of Cybercrime Units for other Agencies/Law Enforcement Bodies
In all participating countries the cybercrime units are available to provide assistance or technical advice
to other units or organizations within the country. In most countries, this assistance is provided on a caseby-case basis, without an established formal procedure or supervising relationship.
As a recommendation, the group considers that the co-operation among the cybercrime units within a
specific country and between them and other governmental agencies should be co-ordinated in such a way
so that a main organization could provide assistance to smaller units around the country regarding moreadvanced or technically demanding investigations. These measures can rationalize the expenditure ofsetting up forensic laboratories, which is especially important for developing countries.
3. Training
All the participant countries have some kind of training for cybercrime investigations. But the type ofthe training varies; some countries have only sent officers abroad to receive training, while others havespecialized institutions to provide regular training on the subject. Also, most of the countries have received
training from private companies. It is recommended to establish a formal and regular technical training
course for dealing with digital evidence, at least on the subject of identification, collection, preservation and109

RESOURCE MATERIAL SERIES No.79

presentation of digital evidence.
It is also advisable that the training not be restricted to those who will specialize in cybercrime
investigation and forensics. The officers responsible for receiving the first information about the crime
or making contact with the victim must also be trained in the basics of cybercrime concepts, in order toproperly start the investigation.
As another recommendation, it is important that training activities be included in international
co-operation programmes and efforts, improving the sharing of experience and knowledge of cybercrimeamong the countries.
4. Mechanisms to Exchange Information on Cybercrime
Regarding the mechanisms to exchange information on cybercrime between law enforcement and theprivate sector and the existence of a specialized organization to facilitate this exchange, the majority ofparticipating countries have those kinds of mechanisms, usually in an informal way. Only a minority havespecialized units to assist this exchange.
Although a dedicated organization to facilitate the exchange of information may not be required, theimprovement of the relationship between law enforcement agencies and the private sector is critical tocombating cybercrime. Regular meetings with the sectors involved, such as financial institutions and ISPs,
should be formally established.
5. CERTs
Almost all the participating countries have a Computer Emergency Team. The nature of those CERTs
varies; there are completely private CERTs, governmental CERTs and others of a mixed nature.
The group reached a consensus that the existence of a properly equipped CERT is essential for promptly
responding to cyber threats, especially attacks on critical infrastructures. It is advisable that government
and private sector co-operate closely in the operation of such teams, in order to avoid duplicity of work anddifficulties in the communication necessary to cope with the emergency events.

D. Cross-Border Investigative Abilities
The group discussed the following subtopics:
1. Search and Seizure of Computers at the Request of Another Country
The group agreed that this is a very sensitive issue that has deep implications for national sovereignty. In the
majority of the participating countries such search and seizure is possible, with some strict conditions, such as:
•
•
•
•
•
•

Explicit government authorization;
Criminalization of the act under the requested country’s law;
Enough evidence to open a case under the requested country’s law;Principle of reciprocity;
Principle of jurisdiction;
Use of diplomatic channels for the request, such as Mutual Legal Assistance.

2. Preservation of Computer Data Evidence at the Request of Another Country
Regarding the existence of a preservation law or rule that allows for preservation of computer data
evidence at the request of another country, in the majority of participating countries there is no provision forsuch cases. Nevertheless, in most countries it is possible to informally ask the ISP or telecoms provider inthe requested country to preserve the data. The actual delivery of this data to the requesting country may
be subject to the restrictions enumerated in the above subtopic.
3. Real-time collecting of Traffic Data at the Request of Another Country
Most of the countries in the group, except for Mexico and Indonesia, do not have the legal capability
to engage in real-time collection of traffic data at the request of another country. Japanese investigative
agencies do have such authority but have not yet exercised it in response to a request from another country.
The implementation of such real-time collection is subject to the same legal requirements listed in the110140TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

discussion entitled “Search and seizure of computers at the request of another country”, above.
4. Disclosure of Header Information to Another Country
The ability to quickly disclose header information to enable the other country to trace the origin of acommunication is available to a majority of the concerned countries, subject to certain legal conditions andon a case-by-case basis.
5. Provision of Secured Electronic Data from ISPs to Another Country
The ability to secure electronic data, such as subscriber information and traffic data, from ISPs or
telecoms providers, and then provide it to another country, is possible in the majority of the concernedcountries subject to the same legal requirements listed in the discussion of subtopic D.1 above. The
provision of content data is subject to even more restrictions, due to privacy issues.
In order to come up with a workable solution to address cross-border investigation, the following aresuggested:••••

Requests for evidence be made under existing MLAT, MLA and/or Letter Rogatory process;The use of 24/7 points of contact (G8, Interpol, Regional organization);
The utilization of locally based foreign embassies. Most countries have embassies in foreigncountries. The representatives of concerned law enforcement agencies who are stationed at therelevant country’s embassy must liaise with the host country;
Use of foreign law enforcement contacts maintained by the cybercrime unit and established throughpersonal contacts and/or workshops, training or seminars.

E. International Co-operation in Cybercrime Investigations
The group agreed to consider the topic of international co-operation in cybercrime investigations as
divisible in three dimensions:
1. Legal
2. Operational (Organizational)
3. Technical
The idea is to keep problems with difficult solutions from interfering in the discussion of solutions toproblems in other dimensions. For example, the problem of search and seizure of computers in the requestof a foreign country is a sensitive issue in the legal dimension. But it should not prevent discussions about
how to turn this request into a real operation and how to technically conduct it. Therefore, if at some pointa solution for the legal problem is found, a method for implementing the action may have already been
established between the parties.
As an example of an idea to improve the operational dimension, the group discussed the establishment ofa three-way handshaking protocol for the reception of collaboration requests. The motivation for this is thatfrequently the requests remain unanswered for some acceptable reason, but the requesting party is nevernotified of this reason, or some technical difficulty prevents the request from being fulfilled but the parties
do not talk about how to overcome it.
A proposal for such a communication protocol, to be run on top of an Integrated Cybercrime Network,1would be as follows:

Step 1. The requesting country files a request containing at least the following information:•••

Detailed description of the offence being investigated;
Unit or person responsible for the request issued, to whom a reply should be directed;
Detailed description of the requested actions.

1 The definition and implementation details of such Integrated Cybercrime Networks are outside the scope of this document.

111

RESOURCE MATERIAL SERIES No.79

Step 2. The requested country, within a previously accorded timeframe, sends a reply containing at least
the following information:•••

Unit or person responsible for dealing with the request;
Whether the request is to be answered promptly or demands further analysis;
Description of legal/operational/technical issues that may arise from the request.

Step 3. T he requesting country, within a previously accorded timeframe, sends back a noticeacknowledging receipt of the requested country’s reply.
As a result of this system, both parties would know that the other end received the message and whatissues were involved, allowing for a more efficient and dynamic control of the requests and for a joint effort
in overcoming possible problems.
As a suggestion to deal with technical problems, countries could discuss ways to quickly overcome thetechnical difficulties that arise when there is a difference between the technical capabilities of the countries.
For instance, the requested country could generate images of the seized digital evidence and make itavailable over a secure network for the requesting country.
Another aspect of international co-operation that can happen immediately, in parallel with other legal andoperational measures, is the help that developed countries can give to the capacity building of developing
countries, creating a baseline for cybercrime investigation units. It would not only help the latter todeal with their internal investigations, but it would also provide for a smoother performance of practicalinternational collaboration when receiving and executing requests from foreign countries.
As general recommendations regarding international co-operation, the group agreed that:
•
•
•
•
•

All countries should implement a 24/7 hi-tech point of contact network (operational dimension);
All countries should share cybercrime information through Interpol and other regional organizations,like ASEANAPOL (operational dimension);
Countries should engage in international co-operation on cybercrime investigation (legal, operational
and technical dimensions);
Countries should have a legal framework that allows engagement and joint cybercrime investigation
with other countries (legal dimension);
Countries should not make direct contact to other countries’ private sector entities or ISPs, butinstead use the established diplomatic/international co-operation channels. But it is acceptable tocontact the local office of global ISPs, when available (legal and operational dimensions).

III. CONCLUSION
Although the main theme of this group workshop was “Challenges and Best Practices in Cybercrime
Investigation”, it is not always possible to discuss such issues without venturing into the debate about
legal frameworks, given that most procedural tools designed to overcome the challenges and some
implementations of best practices need to be supported by proper legislation within each country.
Nevertheless, the group worked to identify common issues and strived to reach consensus on therecommendations towards the improvement of the fight against the threat of cybercrime. Wheneverpossible, those recommendations were included in the main body of this document, immediately following
the discussion of the respective subject for the sake of clarity and conciseness.

112PART TWOWork Product of the Eleventh International Training Courseon the Criminal Justice Response to Corruption

UNAFEIVISITING EXPERTS’ PAPERS
THE UNITED NATIONS CONVENTION AGAINST CORRUPTION:ITS RELEVANCE AND CHALLENGES IN ITS IMPLEMENTATION
Giovanni Gallo*

I. THE UNITED NATIONS CONVENTION AGAINST CORRUPTION AND ITS RELEVANCE
TO CRIMINAL JUSTICE AUTHORITIES
A. Overview of the United Nations Convention against Corruption, Genesis and Structure
1. Genesis of the United Nations Convention against Corruption
In its resolution 55/61 of 4 December 2000, the General Assembly recognized that an effective
international legal instrument against corruption, independent of the United Nations Convention against
Transnational Organized Crime, 1 was desirable and decided to establish an ad hoc committee for thenegotiation of such an instrument in Vienna, at the headquarters of the Centre for International Crime
Prevention of the Office for Drug Control and Crime Prevention.2
In its resolution 56/260 of 31 January 2002, the General Assembly decided that the Ad Hoc Committee
for the Negotiation of a Convention against Corruption should negotiate a broad and effective convention,
which, subject to the final determination of its title, should be referred to as the “United Nations Convention
against Corruption”. The text of the Convention was negotiated during seven sessions of the Ad Hoc
Committee, held between 21 January 2002 and 1 October 2003.
The Convention approved by the Ad Hoc Committee was adopted by the General Assembly by resolution
58/4 of 31 October 2003. The General Assembly, in its resolution 57/169 of 18 December 2002, accepted theoffer of the Government of Mexico to host a high-level political signing conference in Merida for the purposeof signing the United Nations Convention against Corruption.3 In accordance with article 68 (1) of resolution
58/4, the United Nations Convention against Corruption entered into force on 14 December 2005, nineteendays after the deposit of the thirtieth instrument of ratification, acceptance, approval or accession.
In resolution 58/4, the General Assembly also decided that the Ad Hoc Committee for the Negotiation ofa Convention against Corruption would complete its tasks by holding a meeting well before the conveningof the first session of the Conference of the States Parties to the Convention in order to prepare the draft
text of the rules of procedure of the Conference of the States Parties and of other rules described in article
63 of the Convention, which would be submitted to the Conference of the States Parties at its first session
for consideration and possible adoption. In accordance with article 63 (2) of the Corruption, the first sessionof the Conference of the States Parties convened in Jordan from 10 to 14 December 2006, not later than one
year following the entry into force of the Convention.

* Crime Prevention Expert, Corruption and Economic Crime Section, Division for Treaty Affairs, UNODC.
1 Adopted by General Assembly resolution 55/25, annex I, of 15 November 2000.
2 In October 2002, the United Nations Office for Drug Control and Crime Prevention was restructured and renamed the United
Nations Office on Drugs and Crime (UNODC).
3 In accordance with General Assembly resolution 57/169, the United Nations Convention against Corruption was opened forsignature at the High-level Political Signing Conference in Merida, Mexico, from 9 to 11 December 2003.

115

RESOURCE MATERIAL SERIES No.79

140
126

117

120

108

100
93

80

80

60
54

40
24

37

20
2

0

D

3

-0

ec

A

4

-0

pr

13

A

4

-0

ug

D

4

-0

ec

A

5

-0

pr

A

5

-0

ug

D

5

-0

ec

A

6

-0

pr

A

6

-0

ug

D

6

-0

ec

A

7

-0

pr

A

7

-0

ug

D

7

-0

ec

A

8

-0

pr

A

8

-0

ug

As at 10 October 2008, the Convention has 140 signatory States and 126 States Parties. The graphics
above and below offer an overview of the Convention’s pace of adherence and of the regional distribution of
its States Parties.

Group of Latin
American and
Caribbean States:
23 (18%)Group of Eastern
Europe States: 19(15%)

WesternEuropean andother States: 18(14%)

Group of African
States: 41 (33%)

Group of AsianStates: 25 (20%)

2. The Structure of the United Nations Convention against Corruption
The United Nations Convention against Corruption consists of 71 articles divided into eight chapters.
The provisions of the Convention do not have the same level of obligation. In general, provisions can begrouped into the following three categories:(i)	Mandatory provisions, which consist of obligations to legislate (either absolutely or where specified
conditions have been met);(ii)	Measures that States Parties must consider applying or endeavour to adopt; and(iii)	Measures that are optional.
Whenever the phrase “each State Party shall adopt” is used, the reference is to a mandatory provision.
Otherwise, if the language used is “shall consider adopting” or “shall endeavour to”, it means that States
are urged to consider adopting a certain measure and to make a genuine effort to see whether it would becompatible with their legal system. For entirely optional provisions, the Convention employs the term “mayadopt”.
Several articles of the Convention contain safeguard clauses that operate as filters regarding theobligations of States Parties in case of conflicting constitutional or fundamental rules, by providing that
States must adopt certain measures “subject to [their] constitution and the fundamental principles of [their]

116

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

legal system” (for example, article 20), “to the extent not contrary to the domestic law of the requested
State Party” (for example article 46 (17), “to the extent that such a requirement is consistent with thefundamental principles of their domestic law and with the nature of judicial and other proceedings” (forexample, article 31 (8)) or “to the extent permitted by the basic principles of its domestic legal system . . .”(for example, article 50 (1)).
The eight chapters of the Convention are:(i) General Provisions (Chapter I, Articles 1 to 4)
The purpose of this chapter is to define terms employed throughout the text of the Convention, state thescope of application and reiterate the principle of protection of sovereignty of State parties.
(ii) Preventive Measures (Chapter II, Articles 5 to 14)
Under chapter II, the Convention requires States Parties to introduce effective policies aimed at
the prevention of corruption. The chapter calls for the introduction of a variety of measures concerning
both the public and the private sector. Such measures range from institutional arrangements, such as
the establishment of a specific anti-corruption body, to codes of conduct and policies promoting good
governance, the rule of law, transparency and accountability. Significantly, the Convention underscores theimportant role of the wider society, such as nongovernmental organizations and community initiatives, byinviting each State party to actively encourage their involvement and general awareness of the problem ofcorruption.
(iii) Criminalization and Law Enforcement (Chapter III, Articles 15 to 42)
Under this chapter, the Convention requires States Parties to introduce criminal and other offences inorder to cover a wide range of acts of corruption, to the extent these are not already defined as such underdomestic law. The criminalization of some acts is mandatory under the Convention, which also requiresthat States Parties consider the establishment of additional offences. An innovation of the United Nations
Convention against Corruption is that it addresses not only basic forms of corruption, such as bribery andthe embezzlement of public funds, but also acts carried out in support of corruption, such as obstruction ofjustice, trading in influence and the concealment or laundering of the proceeds of corruption. Furthermore,chapter III also deals with corruption in the private sector. Criminalization of corrupt practices needs to besupported by measures and mechanisms that enable the actors of the criminal justice system to effectively
fight corruption through detection, prosecution, punishment and reparation. In this respect, chapter III of
the Convention provides for a series of procedural measures that support criminalization. These provisions
are related to the prosecution of corruption offences and enforcement of national anti-corruption laws, suchas:(a) Evidentiary standards, statutes of limitation and rules for adjudicating corruption offences (articles
28-30);(b) Co-operation between national law enforcement authorities, specialized anti-corruption agencies andthe private sector (articles 37-39);(c) Use of special investigative techniques (article 50);(d) Protection of witnesses, victims and whistleblowers (articles 32 and 33);(e) Allowing the freezing, seizure and confiscation of proceeds and instrumentalities of corruption (article
31);(f) Overcoming obstacles that may arise out of the application of bank secrecy laws (article 40); and(g) Addressing the consequences of acts of corruption (article 34), including through compensating fordamages caused by corruption (art. 35).

(iv) International Co-operation (Chapter IV, Articles 43 to 50)
This chapter emphasizes that every aspect of anti-corruption efforts (prevention, investigation,prosecution of offenders, seizure and return of misappropriated assets) necessitates international
co-operation. The Convention requires specific forms of international co-operation, such as mutual legal
assistance in the collection and transfer of evidence, extradition, joint investigations and the tracing,
freezing, seizing and confiscating of proceeds of corruption. In contrast to previous treaties, the Convention
also provides for mutual legal assistance in the absence of dual criminality, when such assistance does not
involve coercive measures. Furthermore, the Convention puts a premium on exploring all possible ways

117

RESOURCE MATERIAL SERIES No.79

to foster co-operation: “In matters of international co-operation, whenever dual criminality is considered arequirement, it shall be deemed fulfilled irrespective of whether the laws of the requested State party place
the offence within the same category of offence or denominate the offence by the same terminology as therequesting State party, if the conduct underlying the offence for which assistance is sought is a criminal
offence under the laws of both States parties” (article 43, (2)).

(v) Asset Recovery (Chapter V, Articles 51 to 59)
This chapter underscores that a most significant innovation and a “fundamental principle of theConvention” (art. 51) is the return of assets. Chapter V specifies how co-operation and assistance will berendered, how proceeds of corruption are to be returned to a requesting State and how the interests of othervictims or legitimate owners are to be considered.
(vi) Technical Assistance and Information Sharing, Mechanisms for Implementation and Final Provisions(Chapter VI, VII and VIII, Articles from 60 to 71)
These Chapters of the Convention provide for training, research and information-sharing measures andcontain technical provisions, such as for signature and ratification.

B. Provisions of the United Nations Convention against Corruption relevant to Criminal Justice
Authorities
1. Overview of Provisions most Relevant to Criminal Justice Authorities
The United Nations Convention against Corruption contains a number of provisions that are relevant tothe actors of domestic criminal justice systems. The majority of such provisions are contained in chapter III,
Criminalization and law enforcement, and chapter IV, International co-operation, of the Convention. Whilst
a detailed analysis of such provisions is not compatible with the nature of the present paper, below is a non
exhaustive overview of the most significant ones.
(i) Provisions relevant to Criminal Justice Authorities under Chapter III of the Convention
States Parties must ensure that the knowledge, intent or purpose element of offences established inaccordance with the Convention can be established through inference from objective factual circumstances(article 28).
States Parties must establish long statutes of limitation for offences established in accordance with theConvention and suspend them or establish longer ones for alleged offenders evading the administration ofjustice (article 29).
In accordance with article 30, States Parties must:(a) Ensure that offences covered by the Convention are subject to adequate sanctions taking the gravityof each offence into account (paragraph 1);(b) Maintain a balance between immunities provided to their public officials and their ability to effectively
investigate and prosecute offences established under the Convention (paragraph 2);(c) Ensure that pre-trial and pre-appeal release conditions take into account the need for the defendants’presence at criminal proceedings, consistent with domestic law and the rights of the defence(paragraph 4); and(d) Take into account the gravity of the offences when considering early release or parole of convictedpersons (paragraph 5).
Article 30 also mandates that States Parties consider or endeavour:(a) To ensure that any discretionary legal powers relating to the prosecution of offences established inaccordance with the Convention maximize the effectiveness of law enforcement in respect of those
offences and act as a deterrent (paragraph 3);(b) To establish procedures through which a public official accused of such offence may be removed,suspended or reassigned (paragraph 6);(c) To establish procedures for the disqualification of a person convicted of an offence established inaccordance with the Convention from public office, and office in an enterprise owned in whole or inpart by the State (paragraph 7); and118

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS(d) To promote the reintegration of persons convicted of offences established in accordance with theConvention into society (paragraph 10).
In accordance with article 31, States Parties must, to the greatest extent possible under their domestic
system, have the necessary legal framework to enable:(a) The confiscation of proceeds of crime derived from offences established in accordance with theConvention or property the value of which corresponds to that of such proceeds (paragraph 1 (a));(b) The confiscation of property, equipment or other instrumentalities used in or destined for use in
offences established in accordance with the Convention (paragraph 1 (b));(c) The identification, tracing and freezing or seizure of the proceeds and instrumentalities of crime
covered by the Convention, for the purpose of eventual confiscation (paragraph 2);(d) The administration of frozen, seized or confiscated property (paragraph 3);(e) T he application of confiscation powers to transformed or converted property and proceeds
intermingled with legitimately obtained property (to the value of the proceeds in question) and tobenefits or income derived from the proceeds (paragraphs. 4-6); and(f) T he empowerment of courts or other competent authorities to order that bank, financial orcommercial records be made available or seized. Bank secrecy shall not be a legitimate reason for
failure to comply (paragraph 7).
In accordance with article 32, and bearing in mind that some victims may also be witnesses (article 32(4)), States Parties are required:(a) To provide effective protection for witnesses, within available means (paragraph 1). This may include
physical protection, domestic or foreign relocation, special arrangements for giving evidence;(b) To consider entering into foreign relocation agreements (paragraph 3); and(c) To provide opportunities for victims to present views and concerns at an appropriate stage of criminal
proceedings, subject to domestic law (paragraph 5).
Article 33 requires States Parties to consider providing measures to protect persons who report offences
established in accordance with the Convention to competent authorities.
Article 34 requires States Parties to address the consequences of corruption. In this context, States
may wish to consider annulling or rescinding a contract, withdrawing a concession or similar instrument, or
taking other remedial action.
Article 35 requires that States Parties ensure that entities or individuals who have suffered damages as aresult of corruption have the right to initiate legal proceedings to obtain damages from those responsible.
Article 36 requires States Parties, in accordance with the fundamental principles of their legal system:(a) To ensure they have a body or persons specializing in combating corruption through law enforcement;(b) To grant the body or persons the necessary independence to carry out its or their functions
effectively without undue influence; and(c) To provide sufficient training and resources to such body or persons.
Under article 37, States Parties must:(a) Take appropriate measures to encourage persons who participate or who have participated in offences
established in accordance with the Convention to supply information for investigative and evidentiary
purposes and to provide concrete assistance towards depriving offenders of the proceeds of crime andrecovering such proceeds (paragraph 1);(b) To consider allowing mitigating punishment of an accused person who provides substantial
co-operation in the investigation or prosecution of offences established in accordance with theConvention (paragraph 2);(c) To consider providing for the possibility of granting immunity from prosecution to a person who
provides substantial co-operation (paragraph 3); and119

RESOURCE MATERIAL SERIES No.79(d) To provide to such persons the same protection as provided to witnesses (paragraph 4)
Article 38 requires that States Parties take measures to encourage co-operation between their publicauthorities and law enforcement. Such co-operation may include:(a) Informing law enforcement authorities when there are reasonable grounds to believe that offences
established in accordance with articles 15 (Bribery of national public officials), 21 (Bribery in theprivate sector) and 23 (Laundering of proceeds of crime) have been committed; or(b) Providing such authorities all necessary information, upon request.
Article 39 requires States Parties:(a) To take measures consistent with their laws encouraging co-operation between their private sector
authorities (financial institutions, in particular) and law enforcement authorities regarding thecommission of offences established in accordance with the Convention (paragraph 1); and(b) To consider encouraging their nationals and habitual residents to report the commission of suchoffences to their law enforcement authorities (paragraph 2).
Article 40 requires States Parties to ensure that, in cases of domestic criminal investigations of offences
established in accordance with the Convention, their legal system has appropriate mechanisms to overcome
obstacles arising out of bank secrecy laws.
In accordance with article 41, States Parties may allow the consideration of an alleged offender’sconvictions in another State in their own criminal proceedings.

(ii) Provisions relevant to Criminal Justice Authorities under Chapter IV of the Convention
Article 43, paragraph 1, requires that States Parties co-operate in criminal matters in accordance with allarticles in chapter IV of the Convention, that is, extradition, mutual legal assistance, the transfer of criminal
proceedings and law enforcement, including joint investigations and special investigative techniques. Article
43, paragraph 2, requires that, whenever dual criminality is necessary for international co-operation, States
Parties must deem this requirement fulfilled if the conduct underlying the offence for which assistanceis sought is a criminal offence under the laws of both States Parties. The Convention makes it clear thatneither does the underlying conduct of the criminal offence need to be defined in the same terms in bothStates Parties, nor does it have to be placed within the same category of offence.
In accordance with article 44, States Parties must ensure that offences established in accordance with
the Convention are deemed extraditable offences, provided dual criminality is fulfilled (paragraph 1). If
their domestic law allows it, States Parties may grant extradition for corruption offences even without
dual criminality (paragraph 2). If States Parties use the Convention as a basis for extradition, they will notconsider corruption offences as political offences (paragraph 4). States Parties that require a treaty basis for
extradition:(a) May consider the Convention as the legal basis for extradition to another State Party regarding
corruption offences (paragraph 5);(b) Must notify the Secretary-General of the United Nations on whether they will permit the Convention
to be used as a basis for extradition to other States Parties (paragraph 6 (a)); and(c) Must seek to conclude treaties on extradition with other States Parties, if they do not use theConvention as the legal basis for extradition (paragraph 6 (b)).
States Parties with a general statutory extradition scheme must ensure that the corruption offences are
deemed extraditable (paragraph 7). A State Party must endeavour to expedite extradition procedures andsimplify evidentiary requirements relating to corruption offences (paragraph 9). A State Party that denies
an extradition request on the ground that the person is its national must submit the case for domestic
prosecution (aut dedere aut judicare 4). In doing so, the State Party concerned shall ensure that the decision
4 See General Assembly A/CN.4/571, Preliminary report on the obligation to extradite or prosecute (“aut dedere aut

judicare ”).

120THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

to prosecute and any subsequent proceedings are conducted with the same diligence as a domestic offenceof a grave nature and shall co-operate with the requesting State Party to ensure the efficiency of theprosecution (paragraph 11). States Parties can discharge their obligation to submit a case for prosecution
pursuant to article 44 (11), by temporary surrender (paragraph 12). If States Parties deny extradition for
enforcement of a sentence on grounds of nationality, they must consider enforcing the sentence imposed
under the domestic law of the requesting State (paragraph 13). States Parties must ensure fair treatment
for persons facing extradition proceedings pursuant to article 44, including enjoyment of all rights andguarantees provided by their domestic law (paragraph 14). States Parties may not refuse extradition on
the ground that the offence also involves fiscal matters (paragraph 16). Prior to refusing extradition, arequested State Party must, where appropriate, consult with the requesting State Party to provide it withthe opportunity to present information and views on the matter (paragraph 17).
Article 46 requires States Parties:(a) To ensure the widest measure of mutual legal assistance for the purposes listed in article 46,
paragraph 3, in investigations, prosecutions, judicial proceedings and asset confiscation and recovery
in relation to corruption offences (paragraph 1);(b) To provide for mutual legal assistance in investigations, prosecutions and judicial proceedings inrelation to offences for which a legal entity may be held liable under article 26 (paragraph 2);(c) To ensure that mutual legal assistance is not refused on the ground of bank secrecy (paragraph 8).
(d) To offer assistance in the absence of dual criminality through non-coercive measures (paragraph 9,(b);(e) To apply paragraphs 9 to 29 of article 46 to govern the modalities of mutual legal assistance in theabsence of a mutual legal assistance treaty with another State party (paragraphs 7 and 9-29);(f) To notify the Secretary-General of the United Nations of their central authority designated for the
purpose of article 46, as well as of the language(s) acceptable to them in this regard (paragraphs 13 and14); and(g) To consider entering into bilateral or multilateral agreements or arrangements to give effect to or
enhance the provisions of article 46 (paragraph 30).
States Parties may provide information on criminal matters to other States Parties without prior request,
where they believe that this can assist in inquiries, criminal proceedings or the formulation of a formal
request from that State Party (paragraphs. 4 and 5). States Parties are also invited to consider the provisionof a wider scope of legal assistance in the absence of dual criminality (paragraph 9 (c)).
In accordance with article 47, States Parties must consider the transfer to one another of criminal
proceedings when this would be in the interest of the proper administration of justice relative to corruption
offences, especially those involving several jurisdictions.
Under article 48, States Parties must, consistent with their respective domestic legal and administrative
systems, adopt effective measures for the purposes of effective investigation with respect to the offences
established in accordance with the Convention, including:(a) Enhancing and, where necessary, establishing channels of communication between their respective
law enforcement agencies;(b) Co-operating with other States parties in their inquiries concerning the identity, whereabouts andactivities of specific persons, and the movement of proceeds or property derived from the commissionof offences and of property, equipment and other instrumentalities used or intended for use in thecommission of offences;(c) Providing, when appropriate, items and substances for analytical or investigative purposes;(d) Considering bilateral or multilateral agreements or arrangements to give effect to or enhance theprovisions of article 48; and(e) Endeavouring to co-operate in order to respond to corruption-related offences committed through theuse of modern technology.
Under article 49, a State Party must consider bilateral or multilateral agreements or arrangements

121

RESOURCE MATERIAL SERIES No.79

regarding the establishment of joint investigative bodies, while ensuring that the sovereignty of the State
Party in whose territory such investigation is to take place is fully respected.
Under article 50, a State Party must:(a) Establish controlled delivery as an investigative technique available at the domestic and international
level, if permitted by the basic principles of its domestic legal system;(b) Have the legal ability to provide on a case-by-case basis international co-operation with respect tocontrolled deliveries, where not contrary to the basic principles of its domestic legal system; and(c) Where appropriate, establish electronic surveillance and undercover operations as investigativetechniques available at the domestic and international level.

II. THE ROLE OF THE UNITED NATIONS OFFICE ON DRUGS AND CRIME IN
PROMOTING THE RATIFICATION AND IMPLEMENTATION
OF THE UNITED NATIONS CONVENTION AGAINST CORRUPTION
A. The Mandate of the United Nations Office on Drugs and Crime
In its resolution 58/4 of 31 October 2003, the General Assembly, while adopting the United Nations
Convention against Corruption, requested the Secretary-General to provide the United Nations Office on
Drugs and Crime (hereinafter, UNODC) with the resources necessary to enable it to promote in an effective
manner the rapid entry into force of the Convention. Furthermore, in accordance with article 60 (8) of theConvention, States Parties shall consider making voluntary contributions to the United Nations Office on
Drugs and Crime for the purpose of fostering programmes and projects in developing countries with a view
to implement the Convention.
In its resolution 2005/18 of 22 July 2005, entitled “Action against corruption: assistance to States incapacity-building with a view to facilitating the entry into force and subsequent implementation of theUnited Nations Convention against Corruption”, the Economic and Social Council requested the SecretaryGeneral to provide the United Nations Office on Drugs and Crime with the resources necessary to enable itto promote, in an effective manner, the implementation of the United Nations Convention against Corruption
through, inter alia , the provision of assistance to developing countries and countries with economies intransition for building capacity in the areas covered by the Convention.
Subsequently, in its resolution 60/175 of 16 December 2005, entitled “Strengthening the United Nations
Crime Prevention and Criminal Justice Programme, in particular its technical co-operation capacity”, theGeneral Assembly reaffirmed the role of the United Nations Office on Drugs and Crime in providing toMember States, upon request and as a matter of high priority, technical co-operation, advisory services
and other forms of assistance in the field of crime prevention and criminal justice, including in the area of
prevention and control of corruption.
Furthermore, the General Assembly, in its resolution 60/207 of 22 December 2005, entitled “Preventing
and combating corrupt practices and transfer of assets of illicit origin and returning such assets, in particular
to the countries of origin, consistent with the United Nations Convention against Corruption”, encouraged
the United Nations Office on Drugs and Crime to give high priority to technical co-operation, upon request,
to, inter alia , promote and facilitate the ratification and implementation of the Convention and provide
technical assistance to support national efforts in preventing and combating corrupt practices.
Most recently, in its resolution 2006/24 of 27 July 2006, entitled “International co-operation in thefight against corruption”, the Economic and Social Council requested the United Nations Office on Drugs
and Crime to continue to assist States, upon request, with sustainable capacity-building focused on the
promotion of the implementation of the Convention. The Council further invited relevant entities of theUnited Nations system and international financial institutions and regional and national funding agencies
to increase their support to and interaction with the United Nations Office on Drugs and Crime in order tobenefit from synergies and avoid duplication of efforts and to ensure that, as appropriate, activities aimed atpreventing and combating corruption are considered in their sustainable development agenda and that theexpertise of UNODC is fully utilized.

122

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

B. UNODC Activities to promote the Ratification and Implementation of the Convention
In the course of 2005 and 2006, the United Nations Office on Drugs and Crime conducted seven highlevel regional seminars to promote the ratification and implementation of the United Nations Convention
against Corruption. The seminars gathered policy-makers and practitioners from more than 130 Member
States and provided a platform for sharing of experience, good practices and innovative initiatives. During
such seminars, the following emerged as priority issues: (a) criminalization of the corruption offences, inparticular the mandatory ones; (b) promotion of mechanisms for international co-operation, especially in thefield of extradition and mutual legal assistance; and (c) development of a methodology for assessing progressin the implementation of the Convention. In addition, the seminars also highlighted a number of issues
specifically related to corruption:(i) the need to develop and strengthen mechanisms for asset recovery;(ii) the importance of developing national anti-corruption strategies;(iii) t he establishment of anti-corruption bodies with adequate political, functional and budgetary
independence; and(iv) the central role of civil society and the media in raising public awareness on corruption.
In line with the priority issued emerged from the aforementioned seminars, the United Nations Office on
Drugs and Crime developed a strategy of interventions articulated as follows:
1. Support for States in Accession to, Ratification and Implementation of the Convention
This set of activities includes: knowledge-building and awareness-raising for leaders and policy-makers
on the importance of becoming parties to the Convention, and assistance in the identification of ratificationor accession requirements and in developing national action plans for ratification or accession to andimplementation of the Convention.
2. Collection and Analysis of Data on Corruption
Research on and analysis of corruption patterns and trends complement and reinforce the technicalassistance repertoire. Research allows for a base-line set of data to more effectively direct technicalassistance and provide means to measure its impact. Furthermore, a solid knowledge base on the multifaceted nature of corruption and its criminal dimension provides a better understanding of its root-causes,
its links to other criminal activities and its adverse impact on development, hence supporting policy analysis
and evidence-based decision-making. To this end, such tools as the Criminal Justice Assessment Toolkit,5
the Crime and Corruption Business Survey6 and standard survey instruments to assess justice sector
capacity and integrity were produced.
3. Legislative Assistance and Legal Advisory Services to implement the UNCACThe UNODC’s assistance focuses on the criminalization of corruption offences, and the development ofmodel legislation, model treaties and other relevant reference and training materials
This area of UNODC’s work includes:(i) legislative assistance and advisory services to requesting States to review legislative and regulatory
frameworks, identify gaps and recommend action to comply with the requirements of the Convention;(ii) a ssistance in the development or adjustment of domestic legislation for the criminalization ofcorruption offences established in accordance with the Convention, in particular the five mandatory
ones;7 and(iii) dissemination of the Legislative Guide for the Implementation of the United Nations Convention
against Corruption8 and the Traveaux Préparatoires of the Convention9 to lawmakers. In addition,
the development of a new generation of tools, guides, handbooks and model legislation is being
considered. In this context, work is being conducted to develop an on-line library containing relevant
5 Criminal Justice Assessment Toolkit, http://www.unodc.org/unodc/en/justice-and-prison-reform/Criminal-Justice-Toolkit.html

6 Crime and Corruption Business Surveys (CCBS). http://www.unodc.org/unodc/en/data-and-analysis/Crime-and-Corruption-

Business-Surveys.html
7 Articles 15, 16 (1), 17, 23 and 25.
8 http://www.unodc.org/pdf/corruption/CoC_LegislativeGuide.pdf
9 To be published by UNODC in the near future.

123

RESOURCE MATERIAL SERIES No.79

national legislation, policies, tools and other relevant documentation. Similarly, consideration is being
given to the development of a Model Law on Asset Recovery.
4. Support in Strategic Planning, including the Development of Anti-Corruption Policies
In this area, technical assistance rendered by UNODC, includes advisory services and technical input
to design, implement and monitor anti-corruption action plans at national and local levels as well as sectorspecific policies for the prevention and control of corruption. To support policies aimed at enhancing
transparency, accountability and governance and prevent opportunities for corruption in the public andprivate sectors, assistance is being rendered to review and develop:(i)	codes of conduct for public officials;(ii)	public complaints mechanisms;(iii)	asset declaration systems;(iv)	merit-based human resource management frameworks;(v)	whistleblower protection measures and systems;(vi)	effective management of public resources and transparent public procurement;(vii)	access to information; and(viii)	public education and awareness raising. To this end, the Technical Guide for the Implementation of
the Convention and for policy makers and practitioners is being developed and may prove a usefultool.
5. Promotion of International Co-operation in Criminal Matters, in particular, Extradition and Mutual Legal
AssistanceIn this area, technical assistance activities conducted by UNODC include:(i)	knowledge- and capacity-building for practitioners in international co-operation, with particularattention to extradition and mutual legal assistance; and(ii)	the establishment of a directory of central authorities responsible for processing requests for mutual
legal assistance.
The delivery of technical assistance in this field may be greatly facilitated by the use and further
development of information technology solutions. The Mutual Legal Assistance Request Writer Tool, 10
for instance, has proven so effective that a similar application is being developed in the area of extradition.
An on-line directory of central authorities responsible for mutual legal assistance can help promote virtual
networking, open channels of direct communication and facilitate exchange of experience, expertise andsuccessful practices. These and other innovative solutions, such as computer-based training programmes
on freezing, seizure and confiscation of criminal assets, asset recovery, law enforcement co-operation andspecial investigative techniques are also being considered.
6. Building Knowledge and Legal Capacities for Asset Recovery
As noted above, the chapter on asset recovery (Chapter V) is the most innovative and complex of theConvention. Besides the difficulty posed by different legal systems and normative gaps, the successful
implementation of this chapter rests largely on the full understanding of its yet unexplored potential.
Consolidating the knowledge base is therefore a prerequisite to the establishment of effective international
co-operation mechanisms, in particular in the areas of direct recovery and mutual legal assistance for the
purpose of confiscation. Furthermore, the nature of this chapter lends itself to an illustrative distinction
between short- and mid-term activities necessary to implement the Convention and long-term ones.
UNODC has articulated its strategy along these lines. In particular, in the short run, building knowledge andlegal capacities for asset recovery is essential. Activities to this end include:(i)	intensive promotion of awareness and understanding of asset recovery and its mechanisms among
relevant stakeholders; and(ii) building legal capacities to enable countries to successfully recover stolen assets.
10 The Mutual Legal Assistance Request Writer Tool helps practitioners to generate effective requests and receive more

useful responses. It gives access to relevant multilateral, bilateral and regional treaties and agreements and national laws andincludes a case management tracking system for incoming and outgoing mutual legal assistance requests. http://www.unodc.
org/mla/124

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

7. Support to enable States to comply with their Legal Reporting Obligations
The under-reporting problem experienced during the first two reporting cycles of the Conference of theParties to the United Nations Convention against Transnational Organized Crime and Protocols Thereto
has demonstrated that States may have insufficient capacity to fulfil reporting obligations emanating frominternational treaties. To address the issue, UNODC has developed a strategy which would serve a dual
purpose:(i)	the enhancement of countries’ reporting capacities in order to achieve greater compliance with theConvention and;(ii)	a better identification, through timely, complete and accurate information, of technical assistanceneeds. To achieve these objectives, UNODC is providing ad hoc assistance to requesting countries
through training workshops and seminars and has launched voluntary programmes to test
information-gathering and review of implementation mechanisms. Also in this area, the expansion of
innovative solutions, such as a computer-based self-assessment checklist,11 have been considered.
8. Institution- and Capacity-building: Establishing/Strengthening Specialized Institutions prescribedby the Convention
Following the development of comprehensive preventive policies, the Convention requires States toensure the existence of adequate bodies to implement them. Technical assistance in this area, which isalso benefiting from mentors in situ offering on-the-job support, includes activities aimed at ensuring thatanti-corruption bodies and units, financial intelligence units and central authorities responsible for mutual
legal assistance be, as appropriate, operationally and politically independent, adequately staffed, trained andresourced. To this end, UNODC is giving consideration to an on-line repository with various models andapproaches adopted by other countries as well as a network of both government and independent experts,
readily available to provide policy advice and assistance. Also in this area, computer-based training tools,
such as those on anti-money laundering and financial investigations, are proving useful.
9. Strengthening Integrity and Capacity of the Criminal Justice System
This area of work has two main aspects. Its first dimension relates to the need to enhance transparency
and integrity within the justice system and reduce its vulnerability to corruption. To this end, UNODC iscarrying out or considering the following activities, the effectiveness of which is being enhanced throughmentors in situ :(i)	advisory services to design or review human resources policies, terms of reference and codes ofconduct for the judiciary;(ii)	training on ethics and integrity standards; and(iii)	support for national policies and measures aimed at establishing an environment conducive to theeffective and independent performance of judicial functions.
The second dimension of this area relates to the need to increase the overall capacity of the criminal
justice system as well as its specific ability to detect, investigate, prosecute and adjudicate corruption cases.
This objective is being achieved through:(i)	training for law enforcement on specialized investigative techniques and cross-border co-operation
to detect and investigate cases of corruption; and(ii)	training for prosecutors and judges on the Convention and on the application of domestic legislation
to ensure efficient and effective adjudication of cases of corruption. Activities in this area are
drawing on the Legislative Guide for the Implementation of the United Nations Convention against
Corruption, the Bangalore Principles of Judicial Conduct, 12 the Commentary on the Bangalore
Principles and the Training Manual on Judicial Ethics and the United Nations Handbook on Practical
11 The self-assessment checklist is an innovative survey software that was launched on 15 June 2007 to facilitate therecognition of implementation efforts, the identification of implementation gaps and technical assistance needs. As of October
2008, 73 Member States have submitted self-assessment reports. Out of these, 65 are parties to UNCAC, which results in a
response rate of 52%. http://www.unodc.org/unodc/en/treaties/CAC/index.html#selfassessment
12 See ECOSOC Resolution 2006/23. See also Commentary on the Bangalore Principles on Judicial Conduct, UNODC,
September 2007. http://www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf

125

RESOURCE MATERIAL SERIES No.79

Anti-Corruption Measures for Prosecutor and Investigators.13 To contribute to the objectives of thisarea, UNODC is developing a computer-based training tool on judicial ethics. Assistance in this fieldmust receive appropriate attention as a matter of urgency, as it will require significant investment
sustained over longer periods of time. The matter is directly linked with the need to consolidate andexpand the realization and acceptance of the importance of the criminal justice system as a pillar of
the rule of law and thus as a key developmental issue.
10. Development of Mechanisms for Asset Recovery
Following and, to a certain extent, in parallel with the establishment of the necessary knowledge-baseand legal capacities, UNODC is devoting efforts to framework and institution-building. To this end, thefollowing activities are being carried out or considered:(i)	provision of specialized assistance to bring national legal frameworks in line with the requirementsof the Convention;(ii)	assistance to set up legislative and regulatory frameworks for the detection, seizure, freezing andconfiscation of assets domestically and internationally;(iii)	support for the adoption of preventive measures to detect suspicious transactions and the transfer ofproceeds of crime;(iv)	support for the adoption of measures for direct recovery of property and through international
co-operation for confiscation, including provisions for the return of such assets;(v)	support for a broad review of institutional arrangements in order to provide law enforcement andprosecutors with necessary investigative powers and competent judicial and central authorities withthe power to process direct requests for asset recovery; and(vi)	assistance in the creation or strengthening of specialized units, including financial intelligence units,
in charge of asset recovery and international co-operation. Also in this field, innovative solutions arebeing explored and their expansion should be considered. The GoAML application14 developed by
UNODC, for instance, is an integrated database and intelligence analysis system intended for use byfinancial intelligence units allowing for the collection, rule-based analysis, risk scoring, profiling andrapid dissemination of information to law enforcement agencies.
To further facilitate the development of mechanism for asset recovery, UNODC and the World Bank
officially launched the Stolen Asset Recovery Initiative (hereinafter, referred to as StAR Initiative) on
17 September 2007. Work under that joint initiative includes activities to promote the implementation of
the Convention, assistance to developing countries in building capacity for mutual legal assistance andpartnerships to share information and expertise. To further shape the work programme of the Initiative, anumber of consultation missions to identify possible pilot countries and determine their needs and politicalcommitment have been planned and undertaken. An appropriate joint funding vehicle was establishedto provide assistance to States for asset recovery cases in various areas of anti-corruption policy. Other
activities include the development of training tools, a library of good practices and a Web-based list of focal
points.
To oversee the work of the Initiative, the two organizations created a joint StAR Secretariat housed in
the offices of the World Bank in Washington, D.C., and that includes World Bank and UNODC staff. The
secretariat co-ordinates all activities that fall under the StAR Initiative work programme; it acts as a central
point of contact for States seeking or receiving support and for donors providing voluntary contributions, andadministers funds related to the StAR Initiative. To strengthen the collective effort, the Initiative benefits
from the advice and guidance of the “Friends of StAR”, a small group composed of influential, experienced
individuals from developed and developing countries. The group has an advocacy role in promoting theimplementation of the asset recovery provisions of the Convention and co-operation between States on
asset recovery.

13 http://www.unodc.org/pdf/crime/corruption/Handbook.pdf

14 GoAML is available from: http://www.imolin.org/imolin/goAML_Launch.html

126THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

III. THE CONFERENCE OF THE STATES PARTIES AND ITS INTERGOVERNMENTAL
WORKING GROUPS
A. The Functions of the Conference
In accordance with article 63 of the United Nations Convention against Corruption, a Conference of theStates Parties to the Convention is established to improve the capacity of and co-operation between States
Parties to achieve the objectives set forth in this Convention and to promote and review its implementation.
The key functions of the Conference include:(i)	Facilitating the exchange of information among States Parties on patterns and trends in corruption
and on successful practices for preventing and combating it and for the return of proceeds of crime;(ii)	Co-operating with relevant international and regional organizations and mechanisms and nongovernmental organizations;(iii)	Making appropriate use of relevant information produced by other international and regional
mechanisms for combating and preventing corruption in order to avoid unnecessary duplication ofwork;(iv)	Reviewing periodically the implementation of this Convention by its States Parties;(v)	Making recommendations to improve this Convention and its implementation; and(vi)	Taking note of the technical assistance requirements of States Parties with regard to theimplementation of this Convention and recommending any action it may deem necessary in that
respect.
To discharge its functions, articles 63 (5) of the Convention states that the Conference of the States
Parties shall acquire the necessary knowledge of the measures taken by States Parties in implementing
this Convention and the difficulties encountered by them in doing so through information provided by themand through such supplemental review mechanisms as may be established by the Conference of the States
Parties.
To this end, article 63 (6) prescribes that each State Party shall provide the Conference of the States
Parties with information on its programmes, plans and practices, as well as on legislative and administrative
measures to implement this Convention, as required by the Conference of the States Parties. Furthermore,
the Conference of the States Parties shall examine the most effective way of receiving and acting upon
information, including, inter alia , information received from States Parties and from competent internationalorganizations. Inputs received from relevant non-governmental organizations duly accredited in accordancewith procedures to be decided upon by the Conference of the States Parties may also be considered.
In accordance with article 63 (7), the Conference has the prerogative to establish, if it deems it necessary,
any appropriate mechanism or body to assist in the effective implementation of the Convention.
To date, the Conference of the States Parties has held two sessions. The first session took place in Jordan
from 10 to 14 December 2006, while the second session was held in Nusa Dua, Indonesia, from 28 January
to 1 February 2008. In both sessions, the Conference adopted crucial recommendations in the fields: ofgathering information on States’ efforts to implement the Convention; review of implementation; technicalassistance and asset recovery.

B. The Intergovernmental Working Groups Established by the Conference
1. The Intergovernmental Working Group on the Review of Implementation of the Convention
In its resolution 1/1,15 the Conference of the States Parties to the United Nations Convention against
Corruption, recalling article 63 of the United Nations Convention against Corruption, agreed that it wasnecessary to establish an appropriate and effective mechanism to assist in the review of the implementationof the Convention and decided to establish an open-ended Intergovernmental Expert Working Group to
make recommendations to the Conference on the terms of reference of such a mechanism.
In furtherance to the aforementioned resolution, the Working Group on Review of Implementation of theConvention convened in Vienna, Austria, from 29 to 31 August 2007. The report16 of the Working Group was
15 Conference of the States Parties to the United Nations Convention against Corruption, First Session, Jordan, 10-14

December 2006, Resolution 1/1.
16 CAC/COSP/2008/3.

127

RESOURCE MATERIAL SERIES No.79

presented to the Conference at its second session. The latter, by resolution 2/1,17(i)	took note with appreciation of the work of the Open-ended Intergovernmental Working Group on
Review of the Implementation;(ii)	stated that effective and efficient review of the implementation of the Convention in accordance witharticle 63 is of paramount importance and urgent;(iii)	requested the Working Group to prepare terms of reference for a review mechanism forconsideration, action and possible adoption by the Conference at its third session;(iv)	decided that the Working Group should hold at least two meetings prior to the third session of theConference in order to perform its mandated tasks; and(v)	called upon States Parties and signatory States to submit proposals to the Working Group for theterms of reference of the mechanism sufficiently in advance of the meetings of the Working Groupfor its consideration.
Pursuant to resolution 2/1 of the Conference, the Working Group met again in Vienna from 22 to 24
September 2008. The meeting was informed by 33 proposals submitted by States parties and signatories on
the parameters of the review mechanism. During the course of the meeting, the Working Group initiatedthe consolidation of such 33 proposals, with a view to systematizing them while eliminating duplications.
UNODC was requested to carry out the remainder of the consolidation work and to present its outcome
to the next meeting of the Working Group, due to take place in Vienna from 15 to 17 December 2008, forfurther discussion.
2. The Intergovernmental Working Group on Asset Recovery
In its resolution 1/4,18 the Conference established the Open-ended Intergovernmental Working Group on
Asset Recovery. The mandate of the Working Group is: to assist the Conference in developing cumulativeknowledge; encourage co-operation among relevant existing bilateral and multilateral initiatives; facilitate
the exchange of information among States by identifying and disseminating good practices; help build
confidence and encourage co-operation between requesting and requested States; facilitate the exchangeof ideas among States on the expeditious return of assets; and assist the Conference in identifying thecapacity-building needs, including long-term needs, of States Parties in the prevention and detection of thetransfer of proceeds of corruption and income or benefits derived from such proceeds and in asset recovery.
Pursuant to that resolution, the Working Group held its first meeting in Vienna, on 27 and 28 August
2007, and its report was presented to the Conference of the States Parties at its second session.19 In that
context, by resolution 2/3,20 the Conference decided that the Working Group should continue its work,
according to its mandate as set out in Conference resolution 1/4, to advise and assist the Conference in theimplementation of its mandate on the return of proceeds of corruption, and should continue its deliberations
on the conclusions and recommendations contained in the report on its first meeting, with a view to
identifying ways and means of translating those conclusions and recommendations into concrete action. The
Conference further decided that the Working Group should explore means of building confidence, facilitate
the exchange of information and ideas on the expeditious return of assets among States and encourage
co-operation between requesting and requested States. Finally, the Conference requested the Working
Group to continue its deliberations with a view to further developing cumulative knowledge in the area ofasset recovery, especially with regard to the implementation of chapter V, entitled “Asset recovery”, of theConvention against Corruption.
Subsequent to the second session of the Conference, the Working Group on Asset Recovery held
its second meeting in Vienna from 25 to 26 September 2008. The Working Group discussed challenges
in carrying out successful asset recovery and possible solutions, as well as the implementation ofrecommendations it had agreed on at its first meeting. It confirmed its commitment to supporting the
17 Conference of the States Parties to the United Nations Convention against Corruption, Second Session, Nusa Dua, 28

January-1 February 2008, Resolution 2/1 .

18 Conference of the States Parties to the United Nations Convention against Corruption, First Session, Jordan, 10-14

December 2006, Resolution 1/4.
19 CAC/COSP/2008/4.
20 Conference of the States Parties to the United Nations Convention against Corruption, Second Session, Nusa Dua, 28
January-1 February 2008, Resolution 2/3 .

128

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

UNODC’s activities in co-ordinating existing knowledge in this field as well as studying trends and creating
new tools, such as practical guides, an electronic legal library. Furthermore, the Working Group stressed theimportance of technical assistance, particularly in implementing the UNCAC chapter on asset recovery, andagreed that setting up a network of contact points, and more generally creating opportunities for exchange
and dialogue concerning asset recovery, would greatly enhance successful practice in this field.
3. The Intergovernmental Working Group on Technical Assistance
In its resolution 1/5 ,21 the Conference of the States Parties to the United Nations Convention against
Corruption decided to establish an interim open-ended intergovernmental working group, in accordancewith article 63, paragraph 4, of the United Nations Convention against Corruption, to advise and assist
the Conference in the implementation of its mandate on technical assistance. In the same resolution, theConference also decided that the working group should perform the following functions:(i)	Review the needs for technical assistance in order to assist the Conference on the basis of theinformation provided by States to the Conference;(ii)	Provide guidance on priorities, based on programmes approved by the Conference and its directives;(iii)	Consider information gathered through the self-assessment checklist approved by the Conference;(iv)	Consider information, as appropriate and readily available and in the areas covered by theConvention, on technical assistance activities of the Secretariat and States, including successful
practices, and on projects and priorities of States, other entities of the United Nations system andinternational organizations; and(v)	Promote the co-ordination of technical assistance in order to avoid duplication.
In furtherance of the aforementioned resolutions, the first meeting of the Working Group on Technical
Assistance was held in Vienna from 1 to 2 October 2007. The report of the Working Group was presented
to the Conference at its second session.22 The latter, in its resolution 2/4,23 took note of the report on themeeting of the Open-ended Intergovernmental Working Group on Technical Assistance held in Vienna on
1 and 2 October 2007, and decided that the Working Group should continue its work to advise and assist
the Conference in the implementation of its mandate on technical assistance, reaffirming that the Working
Group should meet during the third session of the Conference and, as appropriate and within existing
resources, shall hold at least two intersessional meetings prior to the third session of the Conference. The
first of such intersessional meeting is scheduled to take place in Vienna from 18 to 19 December 2008.

IV. STATES PARTIES’ LEGAL AND PRACTICAL CHALLENGES IN IMPLEMENTING THE
UNITED NATIONS CONVENTION AGAINST CORRUPTION
A. Methodology to Identify Legal and Practical Challenges
In its resolution 1/2,24 the Conference: (a) recognized the importance of gathering information on theimplementation of the Convention; (b) decided that a self-assessment checklist should be used as a tool tofacilitate the provision of information on implementation of the Convention; (c) requested the Secretariat
to finalize the self-assessment checklist no later than two months after the conclusion of its first session,in consultation with and reflecting input from States Parties and signatories; (d) requested the Secretariat
to distribute the self-assessment checklist to States Parties and signatories as soon as possible to begin theprocess of information-gathering, urging States Parties, and inviting signatories, to complete and return the
checklist to the Secretariat within the deadline identified by it; and (e) requested the Secretariat to collate
and analyse the information provided by States Parties and signatories through the self-assessment and toshare that information and analysis with the Conference at its second session.
Between February and April 2007, the Secretariat began the development of a basic survey software
package, which incorporated the self-assessment checklist. For each provision to be reviewed, the software
21 Conference of the States Parties to the United Nations Convention against Corruption, First Session, Jordan, 10-14

December 2006, Resolution 1/5.
22 CAC/COSP/2008/5.
23 Conference of the States Parties to the United Nations Convention against Corruption, Second Session, Nusa Dua, 28
January-1 February 2008, Resolution 2/4.
24 Conference of the States Parties to the United Nations Convention against Corruption, First Session, Jordan, 10-14
December 2006, Resolution 1/2.

129

RESOURCE MATERIAL SERIES No.79

package offered clickable links to relevant reference material and to a summary of the main requirements
against which compliance could be assessed. The development of such an innovative information-gathering
tool was driven by the need: (a) to alleviate the long-lamented questionnaire fatigue, thus facilitating
national authorities’ fulfilment of the reporting obligation; and (b) to facilitate the Secretariat’s analysis of
information, thanks to the ability of the software to generate a variety of statistical data.
From 9 to 11 March 2007, an independent group of experts met in Vancouver, Canada, to review andvalidate the above approach. On 15 June 2007, the Secretariat distributed a CD-ROM containing thesoftware to States Parties and signatories. On 30 June 2007, a computer-based application was madeavailable for downloading from the United Nations Office on Drugs and Crime website.25 The structure of
the computer-based self-assessment checklist is such to enable the collection on information on the statusof implementation of 15 selected articles of the Convention in the following thematic areas: (a) prevention;26(b) criminalization and law enforcement;27 (c) international co-operation;28 and (d) asset recovery.29
For each selected provision, information was elicited by asking States whether they had adopted themeasures required by the Convention. The available answers were (a) yes; (b) yes, in part; and (c) no. Incase of full implementation (“yes”), and in order to simplify the reporting exercise, States were requested
to cite, but not to provide copies of, relevant legislative information. Although optional, some 50 per cent of
the reporting States excerpted or annexed copies of their legislation. An analysis of such legislation has been
conducted by UNODC to the extent possible.30 To substantiate reported implementation (“yes”), States
were requested to provide examples of successful application of the measures cited or quoted. The optional
nature of this question resulted in almost 50 per cent of the reporting States providing such examples. In
case of partial compliance or non-compliance (“yes, in part” or “no”), States were requested to identify thetype of technical assistance that, if available, would facilitate the adoption of the measures prescribed by theConvention.
As of 10 October 2008, 72 self-assessment reports had been received by the Secretariat, from 65 out
of 126 States parties and seven signatories. The graphic below depicts the reporting status, and offers ofan overview of reporting States Parties, reporting signatories and non-reporting States parties sorted byregion.
Reporting parties

Reporting signatories

Non reporting parties

30
13
0

2

10

10

African Group

Asian Group

3

6
1

1

15

16

14

Eastern European
Group

GRULAC

WEOG

25 http://www.unodc.org/unodc/en/treaties/CAC/index.html#selfassessment
26 Articles 5, 6, and 9.

27 Articles 15, 16, 17, 23 and 25.
28 Articles 44 and 46.

29 Articles 52, 53, 54, 55 and 57.

30 CAC/COSP/2008/2 and CAC/COSP/2008/2 Add.1.

130

3

1

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

B. Identification of Legal and Practical Challenges
The above-mentioned information-gathering methodology enabled the attainment of the findings
reported below:(i)	In reporting on preventive measures (chapter II), the large majority of the reporting parties statedthat anti-corruption policies (art. 5) and bodies (art. 6) had been established. The compliance rate inrelation to the implementation of measures for public procurement and management of public funds(art. 9) is lower (56 per cent), with 4 per cent of the reporting parties providing no information.
(ii)	In reporting on criminalization and law enforcement (chapter III), measures providing for thecriminalization of bribery of national public officials (art. 15) and embezzlement of public funds (art.
17) enjoy the highest rate of compliance (over 80 per cent for both articles). Similarly, three out offour reporting parties have criminalized obstruction of justice (art. 25). In contrast, the compliance
rate for the provisions providing for the criminalization of money-laundering (art. 23) is the second
lowest of the entire report, while provisions providing for the criminalization of bribery of foreign
public officials (art. 16) are the least frequently implemented (49 per cent non-compliance rate).
(iii)	For international co-operation (chapter IV), since the review of implementation of measures adopted
to implement chapter IV was limited to the fulfilment of notification obligations, no meaningfulconclusions can be drawn.
(iv)	Lastly, for asset recovery (chapter V), out of the four chapters of the Convention under review, thecompliance rate of chapter V is the lowest (less than 50 per cent), with the highest percentage ofparties unable to provide any information.
Likewise, the same information-gathering methodology enabled the identification of legal and practicalchallenges reported below:(i)	Of the States that reported partial compliance with chapter II (Preventive measures) , 83 per centrequested technical assistance. The development of an action plan for implementation was the typeof assistance most frequently requested (21 per cent), followed by requests for site visits by anticorruption experts (15 per cent) and legal advice (13 per cent).
(ii)	Of the States that reported partial or non-compliance with chapter III (Criminalization and law
enforcement), 79 per cent requested technical assistance. The provision of model legislation was
the form of technical assistance most frequently requested (17 per cent), followed by the provisionof legal advice (14 per cent), assistance in legislative drafting (12 per cent) and requests for on-site
visits by anti-corruption experts (12 per cent).
(iii)	Of the States that reported partial or non-compliance with chapter V (Asset recovery), 83 per centrequested technical assistance. The provision of legal advice (19 per cent), model legislation (18 percent) and support in legislative drafting (17 per cent) were the forms of assistance most frequently
requested.

Legal advice
21%

States not requesting
technical assistance
34%

States requesting
technical assistance66%

Legislative drafting
18%

Site visit by an anticorruption expert
12%Model legislation
21%

Other assistance10%

Development of action
plan for implementation
18%

131

RESOURCE MATERIAL SERIES No.79

The overall analysis of technical assistance needs, depicted in figure above, shows that legal advice andmodel legislation (21 per cent each) are the forms of technical assistance most needed to implement the
15 articles of the Convention covered by the first round of review of implementation. This is followed byassistance in legislative drafting and in the formulation of action plans for implementation (18 per cent each).
Site visits by anti-corruption experts (12 per cent), followed by other country-specific forms of assistance(10 per cent), are the least requested.

132

NATIONAL ANTI-CORRUPTION STRATEGY:
THE ROLE OF GOVERNMENT MINISTRIES
Tony Kwok Man-wai *I. INTRODUCTION
I am honoured to have been invited to UNAFEI for the seventh time to share with you my 27 yearsof experience in fighting Corruption in Hong Kong, as well as my last six years of experience as an anticorruption consultant/trainer in 19 different countries. I joined the ICAC as a junior investigator shortly
after its inception in 1975 and was subsequently promoted through a number of ranks to become thefirst Chinese Deputy Commissioner and Head of Operations in 1996. I witnessed and participated in
the successful battle to turn Hong Kong from one of the most corrupt places on earth to now one of thecleanest. Having been a pioneer corruption fighter for 27 years, I have maintained a strong passion for
the anti-corruption mission and thus, since my retirement, I have been offering my consultancy service in
the international arena to help fight this common enemy. Hence I am most grateful for the opportunity toparticipate in this most worthwhile course and share with you my experience.

II. POLITICAL WILL
From my experience and observation in a number of countries which have a serious corruption problem,
I come to the conclusion that the most important element of an effective anti-corruption strategy is “politicalwill”. Without political will at the highest level, it is almost impossible to combat corruption effectively.
However, all political leaders will claim that they have the will to combat corruption. I propose that weshould be able to judge whether there is genuine political will by checking the following criteria:
•

•

•
•

Firstly, how much support has the government provided in its anti-corruption budget? In Hong
Kong, we set aside 0.3 to 0.4% of our government budget for the ICAC and we believe this isquite adequate. I think no government can claim that they cannot afford to set aside such a small
percentage for combating corruption, particularly when corruption is one of their major problems.
However, I have witnessed that in many “corrupt” countries, their anti-corruption budget isoften less than 0.01% of the national budget, and very often this is the main reason why they are
unsuccessful. If a Government wants to demonstrate its political will, it should ensure that the Anti
Corruption Agency (ACA) is given adequate resources.
Secondly, is there adequate legal support for the ACA to investigate corruption? Because of
its secret nature, corruption is one of the most difficult crimes to investigate, and to carry out
effective enforcement an ACA needs strong power and easier-to-prove offences. The government
and parliament can demonstrate their political will by passing legislation which is anti-corruption
friendly.
Thirdly, is the ACA truly independent in carrying out its enforcement work without politicalinterference?
Fourthly, is the government adopting a zero tolerance policy on corruption? If there is a double
standard in the society, where minor corruption is tolerated or private sector corruption is tolerated,then it is impossible for the society to become a genuinely clean society.

Apart from political will, I want to point out two misconceptions about fighting corruption.

* Adjunct Professor & Honorary Course Director, Postgraduate Certificate in Corruption Studies, Hong Kong University
SPACE and Former Deputy Commissioner and Head of Operations, Independent Commission Against Corruption (ICAC),
Hong Kong.

133

RESOURCE MATERIAL SERIES No.79••

Firstly, it should be realized that there is no single solution to the problem of corruption. You need acomprehensive approach. The Hong Kong model, which is now widely accepted internationally andincluded in the United Nations Convention against Corruption, is to combat corruption through athree pronged approach: enforcement, prevention and education.
Secondly, it should also be realized that you cannot rely on one single agency to combat corruption.
Apart from ACA, there should be a coalition of all social partners. The most important partner is theGovernment, which has an important role in cleaning its own house. Other partners should include
the judiciary, the parliament, the private sector, professional bodies, civil organizations, international
agencies, the media and the public.

III. WHAT IS AN EFFECTIVE ANTI-CORRUPTION STRATEGY?
As a result of the success of the Hong Kong model in fighting corruption, many countries followed Hong
Kong’s example in setting up a dedicated anti-corruption agency. However, many such agencies have notbeen effective and hence there are queries as to whether the Hong Kong model can be successfully applied
to other countries. The point is whether there is a thorough understanding of the working of the Hong Kongmodel. In my view, it consists of the following eleven components.

A. Three Pronged Strategy
As stated earlier, there is no single solution in fighting corruption. Hong Kong’s ICAC adopts a threepronged approach: deterrence, prevention and education. As a result, the Commission consists of three
separate departments: the Operations Department to investigate corruption; the Corruption Prevention
Department to examine the systems and procedures in the public sector, to identify the corruption
opportunities and to make recommendations to plug the loopholes; and the Community Relations
Department to educate the public against the evil of corruption and to enlist its support and partnership infighting corruption.
B. Enforcement Led
The three prongs are equally important, but ICAC devotes over 70% of its resources to the Operations
Department. The reasons are that any successful fight against corruption must start with effective
enforcement on major targets, so as to demonstrate to the public the government’s determination to fightcorruption at all costs, as well as to demonstrate the effectiveness of the anti-corruption agencies. Without
that, the public would be reluctant to come forward to report corruption. Successful enforcement assists
in identifying problem areas for corruption prevention review and can clear any human obstacle in thereview. The successful enforcement stories also provide a basis for public education and deter other corrupt
officials.
C. Professional Staff
Fighting corruption is a very difficult task, because you are confronting people who are probably very
intelligent, knowledgeable and powerful. Thus anti-corruption agents must be very professional. The
ICAC ensures that its staff is professional in its diverse responsibilities – the Operations Department has
professional investigators, intelligence experts, computer experts, forensic accountants and legal experts.
The Corruption Prevention Department has management/technical experts and the Community Relations
Department pools together education, ethics and public relations experts. Apart from professionalism, each
ICAC staff member is expected to uphold a high level of integrity and to possess a passion and sense of
mission in carrying out his or her duties.
D. Effective Deterrence Strategy
The ICAC’s strategy to ensure effective enforcement consists of the following components:
•
•
•

134

An effective public complaint system to encourage reporting of corruption by members of the
public and referrals from other institutions. ICAC has a 24 hour report centre – a highly publicized
telephone hotline to facilitate public reporting.
A quick response system to deal with complaints requiring prompt action. At any time, there is aninvestigation team standing by, ready to be called into action.
The ICAC adopts a zero tolerance policy. So long as there is reasonable suspicion, all reports ofcorruption, irrespective of whether it is serious or relatively minor in nature, will be properlyTHE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS••

investigated.
There is a check and balance system to ensure all investigations are professionally and prompted
investigated, and free from political interference.
Any successful enforcement will be publicized in the media to demonstrate effectiveness and to
deter further corruption.

E. Effective Prevention Strategy
The corruption prevention strategy aims at reducing corruption opportunities in government
departments and public institutions. The general principle is to ensure efficiency, transparency andaccountability in all government businesses.
The most corruption-vulnerable areas are public procurement, public works, licensing, public services
delivery, law enforcement and revenue collection. These should be the priority areas to introduce corruption
prevention reform as success would undoubtedly enhance government revenue and reduce wastage, hence
providing the government additional resources to tackle the poverty problem.

F. Effective Education Strategy
To enlist the support of the entire community to fight corruption the ICAC has a very wide range ofeducation strategies. These include:
•
•
•
•
•
•
•
•
•

Media publicity to ensure effective enforcement cases are well publicized, through press releases,
media conferences and interviews, as well as TV drama series based on successful cases;
Media education – use of mass media commercials to encourage the public to report corruption;
promote public awareness of the evil of corruption and the need for a fair and just society, and as
deterrence to the corrupt;
School ethics education programmes, starting from kindergarten up to university;
The ICAC Club, which accepts members who wish to perform voluntary work for the ICAC incommunity education;
Corruption prevention talks and ethics development seminars for public servants and the businesssector;Corruption prevention best practices and guidelines publications;
In partnership with the business sector, the ICAC set up an Ethics Development Centre as aresource centre for the promotion of a business code of ethics;
Organize exhibitions, fun fairs, and television variety shows to spread the message of a clean society;
Wide use of websites for publicity and reference, youth education and ethics development.

G. Effective Legal Framework and Anti-Corruption Law
Hong Kong has comprehensive legislation to deal with corruption. Apart from the normal bribery
offences, it created three unique offences. It is an offence:•••

for any civil servant to accept gifts, loans, discounts and passage from persons who have official/business relationships with the government, even if there is no related corrupt dealings, unlessspecific permission is given;for any civil servant to be in possession of assets disproportionate to his or her official income; or tolive above his or her means,
for a public official to abuse his or her authority for private gain, whether for him or herself or otherpersons. This is a criminal breach of the rule against conflict of interest. It includes a statutory
requirement to report potential conflict of interest.

On investigative power, apart from the normal police power of search, arrest and detention, ICAC
has the power to check bank accounts, intercept telephone communication, require witnesses to answer
questions under oath, restrain properties suspected to be derived from corruption, and hold the suspects’
travel documents to prevent them from fleeing the jurisdiction. Not only are they empowered to investigate
corruption offences, both in the Government and the private sector, they can investigate all crimes which
are connected with corruption.
The ICAC cases are prosecuted by a select panel of public prosecutors to ensure both quality andintegrity. The judiciary of Hong Kong is a strong supporter of fighting corruption, which ensures that the135

RESOURCE MATERIAL SERIES No.79

ICAC cases are handled in courts by highly professional judges with absolute fairness. The conviction ratefor ICAC cases is very high, around 80%.

H. Check and Balance Mechanism
With the provision of wide investigative power, there is an elaborate check and balance system toprevent abuse of such wide power. One unique feature is the Operations Review Committee. It is a highpowered committee, with the majority of its members coming from the private sector, appointed by the
Chief Executive. The committee reviews each and every report of corruption and investigation, to ensure
all complaints are properly dealt with and there is no “whitewashing”. It publishes an annual report, to betabled for debate before the legislature, thus ensuring public transparency and accountability. In addition,
there is an Independent Complaint Committee where members of the public can lodge any complaint against
the ICAC and/or its officers and there will be an independent investigation. It also publishes an annual report
to be tabled before the legislature.
I. Equal Emphasis on Public and Private Sector Corruption
Hong Kong was amongst one of the first jurisdictions to criminalize private sector corruption. ICAC
places equal emphasis on private and public sector corruption. The rationale is that there should be no
double standards. Private sector corruption can cause as much damage to society, if not more so, than public
sector corruption. Serious corruption in financial institutions can cause market instability; corruption in
the construction sector can result in dangerous structures. Effective enforcement of private sector anticorruption measures can be seen as a safeguard for foreign investment and ensures that Hong Kong
maintains a level playing field in its business environment, thus a competitive advantage in attracting foreign
investment.
J. Partnership Approach
You cannot rely on one single agency to fight corruption. Every one in the community and every
institution has a role to play. The ICAC adopts a partnership approach to mobilize all sectors to fightcorruption together. The key strategic partner of ICAC is the government agencies. The head ofgovernment agency should appreciate that it is his or her solemn responsibility to clean his or her own
house. Other important partners of ICAC include:(i) The Civil Service Commission(ii) The business community(iii) Professional bodies(iv) Civil societies and community organizations(v) Educational institutions(vi) Mass media(vii) International networking.

K. Top-Level Political Will
The most important factor in fighting corruption is “political will”. In Hong Kong, there is clearly toplevel political will to eradicate corruption, which enables the ICAC to be a truly independent agency. ICAC
is directly responsible to the very top, the Chief Executive of Hong Kong. This ensures that the ICAC isfree from any interference in conducting its investigations. The strong political support was translated into
financial support. The ICAC is provided with adequate resources to combat corruption on all three fronts.
IV. WHY MANY ACAs FAILED
Many countries suffering from serious corruption problems set up Anti Corruption Agencies (ACAs).
Countries in Asia that have established dedicated ACAs include Singapore, Malaysia, Thailand, thePhilippines, Brunei, Indonesia, Sri Lanka, Timor Leste, Papua New Guinea, Pakistan, Bangladesh, South
Korea, China, Bhutan and Mongolia. However, few of them are regarded as effective in reducing corruption.
In some cases, corruption worsened. By comparison with the Hong Kong Model, one can identify thefollowing reasons why they failed:•136

Lack of understanding of the causes of corruption: The causes of corruption are due to available
corruption opportunities, lack of ethical values of public officials and citizens, and lack of deterrence.

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

•

•
•
•

•
•
•
•

Some ACAs failed to understand and hence failed to take effective action against each of the threemain causes. The most common error is the belief that corruption can be eradicated through good
governance reform. Some ACAs have no jurisdiction to investigate corruption and can only deal withprevention and education. On the other hand, some ACAs focus on enforcement only.
Lack of resources: In most corrupt countries where the ACA is not seen to be effective, it usually
suffers from lack of resources. Such ACAs’ budgets are invariably below 0.01% of the national
budget. Hong Kong’s anti-corruption budget is 0.38% of the government budget, which is alreadyadequate and such small percentage is clearly affordable by most governments;
Lack of independence: The ACA is subject to political interference in its investigations andprosecutions. Some ACAs were perceived to be used as political tools against the opponents of thegovernment;
Lack of legal support: The anti-corruption law is inadequate to enable the ACA to function
effectively. Some ACAs do not have power to have access bank accounts, which is essential incorruption investigations. Some ACAs do not even have the power of arrest.
Lack of public credibility: Some ACAs do not pursue a policy to encourage public reports. Some evendiscourage public reporting by imposing stringent conditions. In some countries, any corruption
report should be in the form of sworn affidavit before it is accepted by the ACA. Some ACAs refused
to investigate minor corruption complaints or those involving political sensitivity. Some failed
to observe confidentiality with the corruption reports. Some are biased in their investigation orabuse their power. They all suffered from lack of public credibility and without public support, it is
impossible for them to achieve success
Lack of coalition: The ACA appears to be fighting a lonely battle, with little support fromgovernment institutions and legislature;
Corrupt judiciary: making it most difficult to convict corrupt offenders, hence lack of deterrent
effect. To tackle this problem, some countries, such as Pakistan and the Philippines, have to set up
special courts to hear corruption trials;
Lack of professionals: Some ACAs commence their operation prematurely before they havesufficiently experienced and professional staff. Hence their ineffectiveness was highly exposed andthe initial public welcome was replaced by public cynicism;
Lack of internal control: Some ACAs are perceived to have an internal corruption problem.

The overriding factor for failure is the lack of political will. If there is strong political will anddetermination, most of the above problems can be resolved

V. THE ROLE OF GOVERNMENT MINISTRIESApart from the ACAs, the most important players in combating corruption in a country are thegovernment ministries. I had assisted the President of the Philippines and the Prime Minister of Mongolia
to run top level anti-corruption workshops for their heads of ministries. It was amazing to note that initiallythese heads did not consider fighting corruption as their prime responsibility. But it is interesting to notethat after the workshop, they then came to have a better understanding of their internal corruption problem
and their responsibilities to clean their own houses. In these workshops, they came to accept that they havethe following internal problems:
•
•
•
•
•
•
•
•
•

Failure by the head of ministry to accept his or her responsibility to combat inhouse corruption;
Inadequate and ineffective in-house anti-corruption strategy and action plan;
Lack of integrity and ethics amongst staff;
Lack of enforcement of ethical conduct and ethical training;
Nepotism and conflict of interest in human resource management;
Poor public service delivery due to bureaucracy and corruption;
Outdated regulations, resulting in lack of transparency and accountability;
Lack of fair procurement procedures and political interference;
Weak internal audit.

They also agreed that there were indeed many things which they can or should do. These workshops
ended with a consensus on an action plan which the government ministries should implement, such as:••

Set up its own Anti-corruption Steering Group;
Review procedures and systems to make them more transparent and accountable;

137

RESOURCE MATERIAL SERIES No.79

•
•
•
•
•
•
•
•
•

Formulate tailor-made codes of ethics and include regulation on acceptance of gifts andentertainment;
Introduce a declaration system for conflict of interest;
Practice an open and fair recruitment and promotion system, and include integrity checking;Introduce staff training on ethics and corruption prevention;
Leadership by example;
Promulgate zero tolerance policy;
Set up internal staff monitoring unit & internal audit unit;
Enhance and promulgate a public and internal confidential complaint channel with a complaint
hotline;Prompt referral of cases to the ACA and full co-operation with the ACA in investigation.

The government ministry should have a comprehensive corruption prevention strategy which should
include enhancement in the following management systems:
•
•
•
•
•

Performance Management
Procurement Management
Financial Management
Human Resources Management
Complaint Management.

Examples of some of the corruption prevention practices are:
•
•
•
•
•
•
•
•
•
•

Identify risk in vulnerable areas and risk management;
Streamline work procedure manuals;
Enhance staff supervision through surprise check systems;
Enhance internal audits;
Maintain proper documentation for accountability;
Information security policy;
Job rotation policy;
Performance indicators/performance pledges (service guarantee);E-government and e-procurement;
Exercise transparency and fairness in staff recruitment, appraisal and promotion.

In both the Philippines and Mongolia, there is now a system of monitoring the annual anti-corruption planof the government ministries, to provide professional support and to ensure its sustainability through annual
review.

VI. INTERNATIONAL BEST PRACTICESHaving travelled to different countries as an international anti-corruption consultant, I have collected
some examples of international best practices in combating corruption:
•
•
•
•
•
•

138

In South Korea, the public sector, the business sector and civil society joined hands in forming a
coalition called Korea-PACT. Over 800 organizations signed the PACT and undertook to implement
the agreed action plan. The progress was reviewed annually by an international evaluation team;In the Philippines, an expert team is going through the government ministries one by one to carryout a comprehensive integrity audit check and to make recommendations on what measures therespective government ministries should implement to combat internal corruption problems;
In the Philippines, all public procurement in government ministries should be conducted througha “Bids and Award Committee”, and lay observers should be appointed to represent the public inmonitoring the decision making progress;
In Canada, all public officers have a legal obligation to report corruption;
In Pakistan, the Philippines and Indonesia, special anti-corruption courts were formed to hearcorruption trials;
Malaysia set up its own Malaysian National Integrity Index to monitor its the integrity progress.

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

VII. CONCLUSION
There is no single solution in fighting corruption. Every country has to examine its unique circumstancesand come up with a comprehensive strategy, which should embrace the three pronged approach deterrence, prevention and education. Ideally, there should be a dedicated and independent anti-corruption
agency tasked to co-ordinate and implement such strategy, and to mobilize support from the community.
The Hong Kong experience offers hope to countries which have a serious corruption problem whichappears to be insurmountable. Hong Kong’s experience proves that given top-level political will, a
dedicated anti-corruption agency and a correct strategy, even a most corrupt place, like Hong Kong, can betransformed into a clean society.

139

INVESTIGATION OF CORRUPTION CASES
Tony Kwok Man-wai *I. INTRODUCTION
The Hong Kong Independent Commission Against Corruption (ICAC) is popularly regarded as a
successful model in fighting corruption, turning a very corrupt city under colonial government into one of
the relatively corruption free places in the world. One of the success factors is its three-pronged strategy fighting corruption through deterrence, prevention and education. All three are important but in my view,
deterrence is the most important. That is the reason why the ICAC devotes over 70% of its resources
to its Operations Department, which is responsible for investigating corruption. Nearly all of the major
corruption cases I have dealt with were committed by people in high authority. For them, they have certainly
been educated about the evil of corruption and they may also be subject to certain degree of corruption
prevention control. But what inspired them to commit corruption? The answer is simply greed, as theywould weigh the benefits they could get from corruption against the chance of them being discovered. Ifthey think that it is a low-risk, high-return opportunity, they will likely succumb to the temptation. So how
can we deter them from being corrupt? The only way is to make them realize that there is a high risk ofthem being caught. Hence the mission of the ICAC Operations Department is to make corruption a high-risk
crime. To do that, you need a professional and dedicated investigative force.

II. DIFFICULTIES OF INVESTIGATING CORRUPTION
Corruption is regarded as one of the most difficult crimes to investigate. There is often no scene of thecrime, no fingerprint, no eye-witness to follow up. It is by nature a very secretive crime and can involve justtwo satisfied parties, so there is no incentive to divulge the truth. Even if there are witnesses, they are often
parties to the corruption themselves, hence tainted with doubtful credibility when they become prosecution
witnesses in court. The offenders can be equally as professional as the investigators and know how to cover
their trails. The offenders can also be very powerful and ruthless in enforcing a code of silence amongst
related persons through intimidation and violence to abort any investigation. In this modern age, thesophisticated corrupt offenders will take full advantage of the loopholes in cross-jurisdictions and acquire theassistance of other professionals, such as lawyers, accountants and computer experts in their clandestine
operations and to help them launder their corrupt proceeds.

III. CORRUPTION AND ORGANIZED CRIME
Corruption rarely exists alone. It is often a tool to facilitate organized crime. Over the years, ICAC
have investigated a wide range of organized crimes facilitated by corruption. Law enforcement officers
have been arrested and convicted for corruptly assisting drug traffickers and smugglers of various kinds;bank managers for covering up money laundering for organized crime syndicates; hotel and retail staff for
perpetuating credit card fraud. In these cases, we need to investigate not only corruption, but some very
sophisticated organized crime syndicates as well.

IV. PREREQUISITES FOR AN EFFECTIVE INVESTIGATION
Hence, there is an essential need for professionalism in corruption investigation. There are several
prerequisites to an effective corruption investigation.
* Adjunct Professor & Honorary Course Director, Corruption Studies Programme, Hong Kong University SPACE and Former
Deputy Commissioner & Head of Operations, ICAC, Hong Kong.

140

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

A. Independence
Corruption investigation can be politically sensitive and embarrassing to the government. The
investigation can only be effective if it is truly independent and free from undue interference. This depends
very much on whether there is top political will to fight corruption in the country, and whether the head of
the anti-corruption agency has the moral courage to stand against any interference.
B. Adequate Investigative Power
Because corruption is so difficult to investigate, you need adequate investigative power. The HK ICAC
enjoys wide investigative power. Apart from the normal police power of search, arrest and detention, it
has power to check bank accounts, intercept telephone communications, require suspects to declare theirassets, require witnesses to answer questions under oath, restrain properties suspected to be derived from
corruption, and hold the suspects’ travel documents to prevent them from fleeing the jurisdiction. Not onlyis the ICAC empowered to investigate corruption offences, both in the government and private sector,
they can investigate all crimes which are connected with corruption. I must hasten to add that there is anelaborate check and balance system to prevent abuse of such wide power.
C. Adequate Resources
Investigating corruption can be very time-consuming and resource intensive, particularly if the cases
involve cross-jurisdiction. In 2007, the HK ICAC’s annual budget amounted to US$90M, about US$15 per
capita. You may wish to multiply this figure with your own country’s population and work out the anticorruption budget that needs to be given to the equivalent of ours! However, looking at our budget fromanother angle - it represents only 0.3% of our entire government budget or 0.05% of our Gross Domestic
Product (GDP). I think you will agree that such a small “premium” is a most worthwhile investment for aclean society.
D. Confidentiality
It is crucial that all corruption investigation should be conducted covertly and confidentially, at least
before arrest action is ready, so as to reduce the opportunities for compromise or interference. On theother hand, many targets under investigation may prove to be innocent and it is only fair to preserve
their reputation before there is clear evidence of their corrupt deeds. Hence in Hong Kong, we have a law
prohibiting anyone, including the media, from disclosing any details of an ICAC investigation until overt
action such as arrests and searches have been taken. The media once described this as a “press gag law” butthey now come to accept it as a right balance between press freedom and effective law enforcement.
E. International Mutual Assistance
Many corruption cases are now cross-jurisdictional and it is important that you can obtain international
assistance in the areas such as locating witnesses and suspects; money trails, surveillance, exchange ofintelligence, arrest, search and extradition, and even joint investigation and operation.
F. Professionalism
All the investigators must be properly trained and professional in their investigation. The HK ICAC
strives to be one of the most professional law enforcement agencies in the world. ICAC is one of the firstagencies in the world to introduce the interview of all suspects under video, because professional interview
technique and the need to protect the integrity of the interview evidence are crucial in any successful
corruption prosecution. The investigators must be persons of high integrity. They must adhere strictly tothe rule of confidentiality, act fairly and justly in the discharge of their duties, respect the rights of others,
including the suspects, and should never abuse their power. As corruption is so difficult to investigate, theyneed to be vigilant, innovative and be prepared to spend long hours to complete their investigation. The
ICAC officers are often proud of their sense of mission and this is the single most important ingredient of
success of the ICAC.
G. An Effective Complaint System
No anti-corruption agency is in a position to discover all corrupt dealings by itself. They rely heavily onan effective complaint system. The system must be able to encourage quality complaints from members of
the public or institutions, and at the same time, deter frivolous or malicious complaints. It should provide
assurance to the complainants of the confidentiality of their reports and if necessary, offer them protection.
Since the strategy is to welcome complaints, customer service should be offered, making it convenient to141

RESOURCE MATERIAL SERIES No.79

report corruption. A 24 hour reporting hotline should be established and there should be a quick response
system to deal with any complaints that require prompt action. All complaints, as long as there is substancein them, should be investigated, irrespective of how minor is the corruption allegation. What appears to beminor in the eyes of the authority may be very serious in the eyes of the general public!

H. Understanding the Process of Corruption
It should be helpful to the investigators to understand the normal process of corruption, and throughwhich the investigators would be able to know where to obtain evidence to prove the corrupt act. Generally,a corrupt transaction may include the following steps:
1. Softening-up Process
It is quite unlikely that a government servant would be corrupt from his or her first day in office. It isalso unlikely that any potential bribe-offerer would approach any government servant to offer a bribe withoutbuilding up a good relationship with him or her first. Thus there is always a “softening up process” when thebribe-offerer builds up a social relationship with the government servant, for example, inviting him or her
to dinner and karaoke, etc. Thus the investigator should also attempt to discover evidence to prove that the
government servant had accepted entertainment prior to the actual corrupt transaction.
2. Soliciting/Offering of Bribe
When the time is ripe, the bribe-offerer would propose to seek favour from the government servant andin return offer a bribe to him or her. The investigator should attempt to prove when and where this hadtaken place.
3. Source of Bribe
When there is agreement for the bribe, the bribe-offerer would have to withdraw money for the payment.
The investigator should attempt to locate the source of the funds and whether there was any third person
who assisted in handling the bribe payment.
4. Payment of Bribe
The bribe would then be paid. The investigator should attempt to find out where, when and how thepayment was effected.
5. Disposal of Bribe
On receipt of the bribe, the receiver would have to dispose the cash. The investigator should try to locate
how the bribe was disposed, either by spending or depositing into a bank.
6. Abuse of PowerTo prove a corruption offence, you need to prove the corrupt act or the abuse of position in return forthe bribe. The investigator needs to identify the documents or other means proving his or her abuse of
authority.
The task of the investigator is to collect sufficient evidence to prove the above process. He or she needs
to prove “when”, “where”, “who”, “what”, “how” and “why” on every incidence, if possible.
However this should not be the end of the investigation. It is rare that corruption is a single event. A
corrupt government servant would likely take bribes on more than one occasion. A bribe-offerer would likely
offer bribes on more than one occasion and to more than one corrupt official. Hence it is important that theinvestigator should seek to look into the bottom of the case, to unearth all the corrupt offenders connectedwith the case.

V. METHODS OF INVESTIGATING CORRUPTION
Investigating corruption can broadly be divided into two categories:
A. Investigating past corruption offences;
B. Investigating current corruption offences.

142

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

A. Investigating Past Offences
The investigation normally commences with a report of corruption and the normal criminal investigation
technique should apply. Much will depend on the information provided by the informant and from there, thecase should be developed to obtain direct, corroborative and circumstantial evidence. The success of suchinvestigation relies on the meticulous approach taken by the investigators to ensure that no stone is left
unturned. Areas of investigation can include detailed checking of the related bank accounts and company
ledgers, obtaining information from various witnesses and sources to corroborate any meetings or corrupt
transactions, etc. At the initial stage, the investigation should be covert and kept confidential. If there is noevidence discovered in this stage, the investigation should normally be curtailed and the suspects should
not be interviewed. This would protect the suspects, who are often public servants, from undue harassment.
When there is a reasonable suspicion or evidence discovered in the covert stage, the investigation canenter its overt stage. Action can then be taken to interview the suspects to seek their explanation and if
appropriate, the suspects’ homes and offices can be searched for further evidence. Normally, further followup investigation is necessary to check the suspects’ explanations or to go through the money trails as aresult of evidence found during searches. The investigation is usually time-consuming.
B. Investigating Current Corruption Offences
Such investigation will enable greater scope for ingenuity. Apart from the conventional methods
mentioned above, a proactive strategy should always be preferred, with a view to catching the corrupt redhanded. In appropriate cases, with proper authorities obtained, surveillance and telephone interception
can be mounted on the suspects and suspicious meetings monitored. A co-operative party can be deployed
to set up a meeting with a view to entrapping the suspects. Undercover operation can also be considered
to infiltrate a corruption syndicate. The pre-requisites to all these proactive investigation methods areprofessional training, adequate operational support and a comprehensive supervisory system to ensure thatthey are effective and in compliance with the rule of evidence.
As mentioned above, corruption is always linked and can be syndicated. Every effort should be exploredto ascertain if the individual offender is prepared to implicate other accomplices or the mastermind behindthe scheme. In Hong Kong, there is a judicial directive to allow a two thirds reduction of the sentence of
those corrupt offenders who are prepared to provide full information to ICAC and to give evidence against
the accomplices in court. The ICAC provides special facilities to enable such “resident informants” to bedetained in ICAC premises for the purpose of de-briefing and protection. This “resident informant” system
has proved to be very effective in dealing with syndicated or high-level corruption.

VI. INVESTIGATION TECHNIQUE
To be a competent corruption investigator, an official should know many investigation techniques andskills. The following are the essential ones:
•
•
•
•
•
•
•
•
•
•

Ability to identify and trace persons, companies and properties;
Interview technique;
Document examination;
Financial investigation;
Conducting a search and arrest operations;Physical and technical surveillance;
Acting as undercover agent;
Handling informers;
Conducting an entrapment operation;
Witness protection.

I will try to cover the key investigation techniques.

A. Interview Technique
As corruption is a secret crime involving parties who are often sworn to a code of secrecy andsilence, a successful corruption investigator should always be a good interviewer, to break the code ofsilence. Interview technique always forms a very important part of the professional training of corruption
investigators. Interview techniques should include the following elements:

143

RESOURCE MATERIAL SERIES No.79

•
•

•
•
•
•
•

Proper preparation and planning before the interview: the interviewer must study the casethoroughly: the background of the interviewee, the available evidence against him or her, the list ofquestion areas, etc. He or she should then formulate the structure of the interview.
Ability to deal with reluctant witness: it is fully understandable that the interviewees in corruption
cases are reluctant to come forward in the interview. The interviewer must have the ability toidentify the reasons behind the interviewee’s reluctance, whether it is due to his or her dislike of theagency, fear of intimidation, fear of going to court, his or her relations with the corrupt offenders, etc,
and to use the appropriate strategy to win his or her co-operation;
Ability to build rapport: by putting the interviewee at ease in a hospitable environment, giving him
or her reassurance, and handling him or her with patience and sympathy;
Need for active listening and to be flexible in the line of questioning, depending on what theinterviewee has said;
Maintain eye-contact and watch the body language, which often give you clue as to the truthfulnessof what the interviewee is saying. Always attempt to test the truth and to identify the motive of thestatements made by the interviewee;
If the interviewee is prepared to relate the full version, ensure that maximum details are obtained –when, where, who, what and how, in chronological sequence, and most important of all, who else isalso involved in the corruption;
Always retain control in the interview.

B. Professional Investigative Support
In order to ensure a high degree of professionalism, many of the investigation techniques can beundertaken by a dedicated unit, such as the following:
1. Intelligence Section
The intelligence section is a central point to collect, collate, analyse and disseminate all intelligence andinvestigation data, otherwise there may be major breakdown in communication and operations
2. Surveillance Section
The surveillance section is a very important source of evidence and intelligence. The Hong Kong
ICAC has a dedicated surveillance unit of over 120 surveillance agents and they have made a significant
contribution to the success of a number of major cases.
3. Technical Services Section
This section provides essential technical support to surveillance and operations.
4. Information Technology Section
Rapidly advancing telecommunications techniques have created a threat to corruption investigation.
Corrupt negotiation can be carried out without personal contact. It can be done through email, mobile phone,
fax, all without trace. Corrupt transactions via e-banking can, with a switch of button, transfer money tooverseas accounts. Paper documentation is often replaced by computer records protected by unbreakablepasswords. In extreme cases, professional hackers are employed to break into the computer systems of
the anti-corruption agencies to find out the progress of investigations. Counter-surveillance and counterinterception techniques are often engaged to neutralize the law enforcement effort.
However, modern information and telecommunications technology can be a great asset in corruption
investigation, such as:
•
•
•
•
•
•
•

Telecommunications and other technical equipment used in surveillance;
Capability to intercept all types of telecommunication including mobile phones, Internet, fax, etc.;
Speaker identification techniques for production of intercepted evidence;
Mobile/Internet/ CCTV records;
Computer forensics;
Computer intelligence analysis techniques;
Major enquiry/operations computer systems.

5. Financial Investigation Section
Corruption investigations these days often involve sophisticated money trails of proceeds of corruption,

144

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONVISITING EXPERTS’ PAPERS

which can go through a web of off-shore companies and bank accounts, funds, etc. It is necessary to employ
professionally qualified investigative accountants to assist in such investigation and in presenting such
evidence in an acceptable format in court.
6. Witness Protection Section
ICAC has experienced cases where crucial witnesses were compromised, one even murdered, before
giving evidence. There should be a comprehensive system to protect crucial witnesses, including 24 hour
armed protection, safe housing, new identity and overseas relocation. Some of these measures requirelegislative backing.

VII. CONCLUSION AND OBSERVATION
In conclusion, the success factors for an effective corruption investigation include:
•
•
•
•
•
•

An effective complaint system to attract quality corruption reports;
An intelligence system to supplement the complaint system and to provide intelligence support toinvestigations;
Professional and dedicated investigators who need to be particularly effective in interviewing
techniques and financial investigation;
More use of proactive investigation methods, such as entrapment and undercover operations;
Ensure strict confidentiality of corruption investigation, with a good system of protection ofwhistleblowers and key witnesses;
International co-operation.

It is obvious that corruption and organized crime are getting more and more difficult to investigate. The
offenders have taken full advantage of the high technology and cross-jurisdiction loopholes. Conventional
investigation methods and current legal systems may not be adequate to win the battle against the corrupt.
We should adopt a more proactive approach in investigation, such as in the wider use of undercover
operations and the use of telephone interception, and to this end, we need to strike the right balance
between effective law enforcement and protection of human rights and privacy.

145

139TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’
PAPERSVISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION– BANGLADESH PERSPECTIVE –Jahanara Pervin*

I. INTRODUCTION
Corruption is a global problem. It exists to a greater or lesser degree in all countries; irrespective ofpolitical and economic systems, size, or state of development.
Bangladesh is a densely populated country. The pressure of population, terrorism, poverty, illiteracy,
natural disasters and corruption are some of the problems facing the country which seriously hamper its
growth. Corruption in particular has made this nation unstable. However, the people of Bangladesh fightcorruption continuously.
The role of the criminal justice system is crucial in the fight against corruption. Successful detection,
investigation, prosecution, adjudication and punishment of corrupt offenders contribute greatly to theprevention and eradication of corruption. But these are not easy tasks to accomplish. To successfully overcome
the challenges, the criminal justice authorities need to use innovative legal means, both domestically andinternationally. In addition, it is of the utmost importance to ensure and maintain the integrity and necessary
independence of criminal justice personnel, as a prerequisite to fulfilling their great responsibilities.
In a democratic system, the government has three wings, the executive, the legislative and the judiciary.
The Bangladesh constitution ensures these three wings act separately and independently. According toconstitutional obligation the judiciary has been separated. The Code of Criminal Procedure 1989 has been
amended. Since 11 January 2007, there has been great attention to controlling corruption at different levels.
The government of Bangladesh has taken adequate measures to curb different aspects of corruption.

II. BANGLADESH: A PARTY TO THE UNCACThe UNCAC is the first global, legally binding instrument on corruption and a comprehensive documentthat includes measures on prevention, criminalization and international co-operation. Bangladesh accededto the UNCAC on 27 February 2007. That has been a significant and symbolic step toward great reforms
for good governance and is consistent with its commitment and declared strategy to fighting corruption andcomplying with international standards. Bangladesh acceded to the UNCAC because, together with otherStates Parties to the convention, it is convinced and concerned about the objectives it expects to achieve byacceding to the UNCAC. The report “UNCAC- a Bangladesh Compliance and Gap Analysis” is the result of
this initiative. To convey the nation’s progress in implementing the UNCAC the report was presented by
the government of Bangladesh at the second conference of States Parties in Bali, Indonesia, in January 2008.
The second edition of the report has already been published. Bangladesh’s existing legislation covers mostof the requirements for the criminalization of corruption offences and even goes beyond that, covering someelements of the offence in the non-mandatory clauses and others.

III. CURRENT SITUATION IN BANGLADESH OF CORRUPTION AND RELATED ACTS
The criminal justice system of Bangladesh is based on common law. The purpose of criminal justiceis punitive. The law and justice are quite essential for keeping peace, order and civilization of the state.
Prevention and eradication of corruption require a comprehensive and multidisciplinary approach.
* Director, Anti-Corruption Commission, Bangladesh.

146

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

Established in 2004, the ACC was re-constituted in 2007. Already, the Anti-Corruption Commission
Rule, 2007 has been promulgated and the commission has succeeded in establishing itself as an independentbody. Since then it has been working with tremendous enthusiasm, showing unprecedented activism
and increasingly gaining public confidence. As of 31 August 2008, the ACC filed 1,150 criminal cases ofcorruption. Of those, 190 have been sent to trial and judgments have been received in 87 cases with 11
total convictions. The remainder are under inquiry and investigation. Three hundred and eighty are wealthstatements asked for. However, to institutionalize this current image and effectiveness of the ACC alongwith the continued political will and commitment to combat corruption, an independent judiciary and otherwatchdog institutions are essential. In 2007, the judiciary of Bangladesh was completely separated from theexecutive. This is a historical achievement.

A. Bribery of National Public Officials
Chapter III of the UNCAC obligates States Parties to criminalize a wide range of acts of corruption(Articles 15-27) and to establish a series of procedural measures and mechanisms that support suchcriminalization (Articles 28-41).
The UNCAC obligates the States Parties to criminalize certain acts of bribery. These are active bribery ofnational public officials (Article 15), and passive bribery of national public officials (Article 15.b).
In Bangladesh, the Penal Code, 1860 criminalizes the act of taking by a public servant of any gratification
other than legal remuneration in respect of an official act (Section 161); the act of obtaining by a public
servant of any valuable thing without consideration from a person concerned in proceedings or business
transacted by such public servant (Section 165); and any abetment, i.e., instigating or aiding, by any personof any such taking or obtaining (Section 165A). Moreover, according to the Prevention of Corruption Act,
1947, the act of accepting or obtaining by a public servant of any gratification other than legal remunerationin respect of an official act (Section 5(1) (a)), and the act of accepting or obtaining by a public servant of any
valuable thing without consideration from person concerned in the proceedings or business transacted bysuch public servant (Section 5(1) (b)) amount to punishable criminal misconduct. These penal provisions
adequately address the UNCAC requirements regarding active and passive bribery of national public officials.

B. Embezzlement, Misappropriation or Other Diversion of Property by a Public Official
States Parties have a mandatory obligation to criminalize embezzlement, misappropriation or otherdiversion of property by a public official (Article 17). Regarding embezzlement, misappropriation or otherdiversion of property by a public official (Article 17), the domestic standard is quite compatible with the
UNCAC standard. The Penal Code criminalizes the act of dishonest misappropriation of property (Section403) and criminal breach of trust by a public servant (Section 409). These offences, as their definitions
indicate, include embezzlement, misappropriation or other diversion of property by a public official. Moreover,according to the Prevention of Corruption Act, 1947, the act of dishonest or fraudulent misappropriation orconversion by a public servant for his or her own use of any property entrusted to him or her or under hisor her control as a public servant or allowing any other person so to do is punishable, criminal, misconduct(Section 5(1) (c)); on the other hand, definitions of the offences of dishonest misappropriation of property(Section 403) and criminal breach of trust (Section 406) are criminalized by the Penal Code, 1860.
IV. CORRUPTION OFFENCES AND CORRUPTION-RELATED OFFENCES IN BANGLADESH
A. Offences under the Anti Corruption Commission Act, 2004
1. Section 19: Special Powers of the Commission in Respect of Inquiry or Investigation(i) Any person obstructing an official legally empowered by the commission, or a commissioner in theexercise of his or her powers under this sub-section (1), or any person deliberately violating anyorder given under that sub-section commits a punishable offence is liable to a term of imprisonmentof not more than three years or a fine or both.
2. Section 26: Declaration of Properties(i) If the commission is satisfied on the basis of its own information and after necessary investigationthat any person or any other person on his or her behalf is in possession or has obtained ownershipof property not consistent with his or her legal/known sources of income then the commission
through an order in writing shall ask that person to submit a statement of assets and liabilities in the147

RESOURCE MATERIAL SERIES No.79

manner determined by the commission and to furnish any other information mentioned in that order.
(ii) If any person(a) After having received an order mentioned in sub-section (1) fails to submit the written
statement or furnish the information accordingly or submits any written statement or provides any
information that is false or baseless or there are sufficient grounds to doubt their veracity; or(b) Submits any book, account, record, declaration, return or any document under sub-section(1) or gives any statement that is false or baseless or there are sufficient grounds to doubt its
veracity, then that person will be sentenced to a prison term of up to three years or a fine or both.
3. Section 27: Possession of Property in Excess of Known Sources of Income(i) If there are sufficient and reasonable grounds to believe that a person in his/her own name or
any other person on his/her behalf is in possession and has obtained ownership of moveable or
immovable property through dishonest means and the property is not consistent with the known
sources of his/her income and if he/she fails to submit to the court during trial a satisfactory
explanation for possessing that property, then that person shall be sentenced to a prison terms
ranging from a minimum of three years to a maximum of ten years’ imprisonment, and theseproperties shall be confiscated.

B. Offences under the Prevention of Corruption Act, 1947
1. Section 5, Subsection (2)Any public servant who commits or attempts to commit criminal misconduct shall be punishable withimprisonment for a term which may extend to seven years, or with fine or with both.
C. Offences under Sections 161-169, 217, 218, 408, 409, 477A and Sections 109, 120(B) & 511 of thePenal Code, 1860 (Act XLV of 1860)(a) Sec 161: Being or expecting to be a public servant and taking a gratification other than legal
remuneration in respect of an official act. Imprisonment of either description for three years, or fine,or both;(b) Sec 162: Taking a gratification in order by corrupt or illegal means to influence a public servant.
Imprisonment of either description for three years, or fine, or both;(c) Sec 163: Taking a gratification for the exercise of personal influence with a public servant. Simple
imprisonment for 1 year or fine, or both;(d) Sec 164: Abetment by public servant of the offence defined in the last two preceding clauses withreference to himself. Imprisonment of either description for three years, or fine, or both;(e) Sec 165: Public servant obtaining any valuable thing, without consideration, from a person concernedin any proceeding or business transacted by such public servant. Imprisonment of either description
for three years, or fine, or both;(f) Sec 165A: Abetment of offences under Section 161 and 165. Imprisonment of either description forthree years, or fine, or both;(g) Sec 166: Public servant disobeying a direction of the law with intent to cause injury to any person.
Simple imprisonment for one year, or fine, or both;(h) Sec 167: Public servant framing an incorrect document with intent to cause injury. Imprisonment ofeither description for three years, or fine, or both;(i) Sec 168: Public servant unlawfully engaging in trade. Simple imprisonment for one year of fine, or both;(j) Sec 169: Public servant unlawfully buying or bidding for property Simple imprisonment for three
years, or fine, or both and confiscation of property, if purchased;(k) Sec 217: Public servant disobeying a direction of law with intent to save a person from punishment,

148

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

or property from forfeiture. Imprisonment of either description for two years, or fine, or both;(l) Sec 218: Public servant framing an incorrect record or writing with intent to save person frompunishment, or property from for forfeiture. Imprisonment of either description for three years or
fine, or both;(m) Sec 408: Criminal breach of trust by a clerk or servant. Imprisonment of either description for sevenyears and fine;(n) Sec 409: Criminal breach of trust by public servant or by banker, merchant or agent, etc.
Imprisonment for life or imprisonment of either description for ten years, and fine;(o) Sec 477A: Falsification of accounts. Imprisonment of either description for seven years, or fine, or both;(p) Sec 109: Abetment of any offence if the act abetted is committed in consequence, and where no
express provision is made for its punishment The same punishment as for the offence abetted;(q) Sec 120B: Criminal conspiracy to commit an offence punishable with death, transportation or
rigorous imprisonment for a term of two years or upwards. The same punishment as that provided
for the abetment of the offence, which is the object of the conspiracy.
(r) Sec 511: Attempting to commit an offence punishable with transportation of imprisonment, and insuch attempt doing any act towards the commission of the offence. Transportation or imprisonment
not exceeding half of the longest term, and of any description provided for the offence, or fine, or both.

D. Offences under the Money Laundering Prevention Ordinance, 2008
1. Section 4: The Offence of Money Laundering and Punishment(1) For the purpose of this Ordinance, money laundering shall be deemed to be an offence.
(2) Any person who commits or attempts to commit the offence of money laundering or abets orconspires in the commission of such offence shall be punished with imprisonment for a term which
may extend to seven years but not less than six months and the money or property derived from thecommission of such offence shall also be forfeited to the state.
2. Section 5: Punishment for Violation of Freezing or Attachment Order
Any person who contravenes an order of attachment or freezing and account made under this Ordinanceshall be punished with imprisonment for a term which may extend to one year, or with fine which may
extend to five thousand taka, or with both.
3. Section 6: Punishment for Divulging of Information(1) No person shall, for the purpose of frustrating the investigation or making adverse influence overthe investigation, divulge any information relating to investigation or other related information to
any person, organization or news media.
(2) Every person, organization or agent authorized under this Ordinance during the period of his
service or appointment or on the expiry of term of service or contract of appointment shall, except
for the purpose of this Ordinance, abstain from using, publishing or divulging information collected,
received, retrieved and known to him.
(3) Any person who contrivances the provisions of sub-section (1) and (2), shall be punished withimprisonment for a term, which may extend to two years, or to fine which may extend to ten
thousand taka, or with both.
4. Section 7: Punishment for Obstruction or Non-co-operation in Investigation, Failure to Report orProvide Information(1) Any person who(i) Obstructs or refuses to assist the concerned officer engaged in investigation under this149

RESOURCE MATERIAL SERIES No.79

Ordinance; or(ii) Without reasonable ground, refuses to furnish or provide report or information required
under this Ordinance shall be deemed to have committed an offence under this Ordinance.
(2) Any person who contravenes the provisions of sub-section (1), shall be punished with imprisonment
for a term which may extend to one year, or with fine which may extend to five thousand taka, orwith both.
5. Section 8: Punishment for Providing False Information(1) Nobody shall knowingly provide false information relating to the source of money or the identity of
any account holder or the beneficiary or nominee of the account.
(2) Any person who contravenes the provision of sub-section (1), shall be punished with imprisonment
for a term which may extend to one year, or with fine which may extend to 50,000 thousand taka, orwith both.

V. COMPETENT AUTHORITIES FOR INVESTIGATION, PROSECUTION AND
ADJUDICATION
A. Relevant Investigating, Prosecuting and Adjudicating Authorities or Agencies of Corruption
Offences and Corruption-Related Offences
The relevant laws on investigation, prosecution and adjudication of corruption cases are the Criminal
Procedure Code (CrPC) 1898, the Anti-Corruption Commission Act, 2004 and the Anti-Corruption Law,
2007. The former is the general procedural law for investigation and trial of criminal cases. The latter isthe special law against corruption. As far as investigations of corruption cases are concerned, if any conflict
between the provisions of the aforesaid Acts is found, the provision of the latter Act will prevail. The
CrPC describes under Sections 154 to 173 how offences are registered with police stations: investigations
are made and the reports of investigations are submitted before the court for trial. The Anti-Corruption
Commission Act dictates an investigator to conduct an enquiry before lodging/registering a First Information
Report (FIR) stating the offence(s) committed. If prima facie evidence is established in an enquiry, an FIR
is lodged with the police station and thereafter the formal investigation starts under the provisions of the
CrPC. An investigation ends with submission of Investigation Report before the court. The provision ofSection 20 sub-section (1) of the Anti-Corruption Commission Act, 2004 has made the commission the only
investigating authority having jurisdiction all over Bangladesh to investigate the offences of corruption.
B. The Sequence of Investigation
The sequence of investigation is depicted blow through a diagrammatic flow chart:

150(1) Receiving allegations/screening/ decision.

(2) Selection/ appointmentof enquiry
officer/team.

(3) Enquiry andsubmission of enquiry
report with specificsuggestion.

(6) Selection/ appointment
of investigating officer.

(5) Recording of FIR.

(4) DecisionFIR/Close the file/(7) Investigation andsubmission of Memoof Evidence withspecific suggestion.

(8) DecisionCharge Sheet/Final
Report/Reinvestigation(9) Submission of Charge
Sheet/ Final Report
before the Court

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

1.
2.
3.
4.
5.
6.
7.
8.
9.

Any person may lodge a complaint in respect of an offence mentioned in the schedule of the Act tothe commission or a police station. After receiving the complaint the screening committee will makethe report and send it to the commission.
Then the commission will give a decision as to an enquiry and appoint an enquiry officer or a team.
The enquiry officer or team shall complete the enquiry within the time limit as per the Act and Ruleand submit a report with specific suggestions to the commission.
After receiving the enquiry report the commission gives a decision to lodge the FIR or close the file.
According to the commission’s decision the enquiry officer lodges the FIR to the respective police
station.
The commission appoints an investigation officer.
After completing the investigation the officer shall submit a Memo of Evidence and draft a charge
sheet or final report with specific suggestions to the commission.
The commission will go through the report and take a decision to accept the charge sheet or the final
report or order re-investigation.
According to the commission’s decision, the investigating officer submits a charge sheet or final
report before the court.

C. Special Judges/Courts to Try Corruption Cases
Under the provision of the Criminal Law Amendment Act, 1958 and the Anti-Corruption Commission
Act, 2004, corruption cases are triable by Special Judges only. A Session Judge, an Additional Session Judgeand an Assistant Session Judge can be appointed as Special Judges. The Session Judges, the Additional
Session Judges and the Assistant Session Judge of all districts and metropolitan areas have the authority to
try corruption cases within their territorial jurisdictions, in addition to their original jurisdictions as Judgesof Civil Courts and Criminal Courts. Besides, there are 21 Special Courts established exclusively for trial of
corruption cases at District level and ten special courts established at Dhaka.
D. The Sequence of Prosecution and Trial

1.
2.
3.
4.
5.
6.
7.

(1) Recording of FIR with
Police Station.

(2) Sending the FIR to a
Magistrate(by the Police Station).

(3) Opening of a fileagainst the FIR(by the Magistrate).

(6) Special Judge opens afile against Special
Case Register, frames
charges against
accused and starts trial.

(5) Sending the File alongwith FIR, Charge
Sheet/Final Report andexhibits to the trial
court(by the Magistrate).

(4) Submission of Charge
Sheet or Final Report
and the exhibits(by the investigating
officer).

(7) Special Judge examines
prosecution wittiness,close the prosecution
case and examine theaccused.

(8) Special Judge examines
accused wittiness (ifany) and close theaccused case.

(9) Hard both parties
argument and declares
judgment.

FIR lodged by the enquiry officer to the respective police station.
The police officer sends the FIR to the respective magistrate court.
The magistrate opens a file against the FIR.
The investigation officer after completing the investigation submits a charge sheet or final reportwith the exhibits and sanction order of the commission to the court.
The magistrate sends the file along with FIR and CS/FR etc. to the trial court.
A Special Judge (trial court) opens a file against the special case register and accepts CS.
If the case is ready for trial after hearing both parties it frames charges against the accused.

151

RESOURCE MATERIAL SERIES No.79

8.

The court examines the prosecution’s witnesses, closes the prosecution’s case and examines theaccused.
9. The court examines the accused’s witnesses (if any) and closes the accused’s case.
10. Having heard both parties’ arguments, the judge renders a decision.

VI. PROBLEMS AND CHALLENGES IN STRENGTHENING THE CAPACITY AND
ABILITY OF CRIMINAL JUSTICE AUTHORITIES AND THEIR PERSONNEL
On 11 February 2007 the Judiciary was separated from the Executive and the Code of Criminal
Procedure, 1898 (Act V of 1898) was amended. The Bangladesh Judicial Service Commission Rule,2007 and the Judicial Service (formation, appointment and suspension, dismissal and removal) Rule and(Pay Commission) Rule, 2007 were passed by the government. The Judicial Service Commission is theappointing authority of judges. They will be directly recruited by the Commission and their service will be
ruled by the Commission with the consultation of Supreme Court. Now the criminal justice authorities andtheir personnel are independent.

A. Problems and Challenges(a) Lack of proper training facilities for the investigators in different investigating agencies.
(b) Lack of adequate logistics support for investigating agencies.
(c) Inadequate promotional opportunities for the investigating officers.
(d) Overburdened investigating duty.
(e) Time limit for the investigation period.
(f) Lack of proper training for judges, magistrates and prosecutors.
(g) Inadequate co-ordination between witnesses and prosecutors.
(h) Taking longer to complete trials.
VII. CONCLUSION
It is expected that with the sincere co-operation of the people of Bangladesh, the recently adopted
pragmatic policies and measures taken by the present government will be successfully implemented. Thisrequires absolute separation of the judicial system from other organs of the government. Only raising a
sense of moral values and integrity can lead to success and that requires both intensive and extensive massawareness programmes. In this context, adoption of UNCAC would be a greater guideline for developing
anti-corruption policies and mechanisms, public sector integrity, prevention of money laundering,
controlling crimes, developing law enforcing measures and effective management of public finances. The
recent changing in Bangladesh’s position in the corruption scale is a good sign and a source of hope for our
economy and we are to be more careful and vigilant so as to prevent the tendencies for corruption instead of
waiting to resolve post corruption activities.
The government has taken initiatives to reform the legal and institutional structures to strengthensome of the key institutions of democracy and the national integrity system. The institutions that havealready undergone substantive reforms include independence of the judiciary, reconstitution of the Election
Commission, and establishment of the Anti-Corruption Commission and the Public Service Commission,
which followed the Government’s prompt decision to accede to the UN Convention against Corruption on
27 February 2007, within six weeks of taking power. A series of high profile initiatives have been takenby the caretaker government to criminalize corruption by prosecuting the allegedly corrupt individuals,
irrespective of their political and other status in society. While the fate of the cases will depend on the
courts, the on-going anti-corruption drive could be the strongest ever signal in Bangladesh’s history that
corruption is a punishable offence.
Critical to any effective anti-corruption strategy is systemic transformation. But the ultimate source ofstrength in the anti-corruption movement is the people: their awareness, voice raising and participationin the form of a social movement with the active support of all stakeholders, including the media. The
main challenge is to create an environment in which corruption is hated and rejected by every one andpressures will come from all levels to generate the will and commitment of the leadership to strengthen theeffectiveness of the key institutions.

152

139TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSEFFECTIVE LEGAL AND PRACTICAL MEASURES IN COMBATINGCORRUPTION
Tshering Namgyel*

I. INTRODUCTION
Corruption is a disease that is common in every country. However it varies from country to country
depending upon the system of government, level of economic development, policy of the government andculture of the society. Although corruption is not seen in on an unmanageable scale it is prevalent Bhutan in all
forms and at various levels, be it in government or the corporate and private sectors. Transparency International
has placed Bhutan at number 46 amongst 180 countries in the Corruption Perception Index (CPI).1
With the transition of the government to constitutional parliamentary democracy, His Majesty the FourthKing felt it very important to prevent and eliminate corruption from the very beginning of his reign anddecreed the establishment of an Anti-corruption Commission (ACC) on 31 December, 2006. Accordingly on 4
January, 2007 the ACC office was set up specifically as an agency to clean up corruption in Bhutan. Since its
inception, the ACC has been actively involved in tracing corruption and bringing perpetrators to task, besides
carrying out preventive and educational programmes. It has mainly devoted itself to developing baseline
information on corruption; investigating cases; simplifying public delivery systems and asset declaration;
education and advocacy on corruption; and studying the forms, causes and consequences of corruption.2

II. POLICIES AND INITIATIVES OF THE ROYAL GOVERNMENT
His Majesty the Fourth King’s development philosophy of Gross National Happiness (GNH) has beenenshrined in the constitution as the goal and pursuit of the government.3 In order to pursue this noble goal,
anti-corruption measures are adopted through the policies of good governance by encouraging efficiency,
accountability and transparency. The fight against corruption has been featured as a national agenda in the2005 Good Governance Plus (GG+) Report and through this report all agencies are required to take anticorruption initiatives.
On 12 June the Prime Minister, in his address to the gathering on the Launching of the Asia Pacific
Human Development Report 2008, “Tackling Corruption, Transforming Lives”, assured the commitment of
his government to the policy of good governance. In doing so he also stressed the participation of the people
in making the government more accountable, responsible and transparent. In a later address to the nation healso assured his support for the fight against corruption and said that the government is adopting a policy ofzero tolerance to corruption.

* Judge, Royal Court of Justice, District Court, Thimphu, Bhutan.
1 Bhutan Times, Volume II, No 112 (24 September 2008).
2 ACC Website.

3 Article 9, section 2 of the Constitution of the Kingdom of Bhutan.

153

RESOURCE MATERIAL SERIES No.79

III. CAUSES OF CORRUPTION
The ACC conducted a Corruption Perception Survey (CPS) in 2006 and found that the respondents
viewed human wants (55.9%), needs (42.8%), and discriminatory and non-uniform application of laws andrules (40.9%), as the major causes of corruption, as shown in Figure 1.

Causes of corruption

Figure 1

Weak and ineffective media

27.8

Too many rules to follow

28.9

Lengthy procedures

29.3

Social demands and obligations

30.1

Poor/ no proper accountability mechanism

31.4

Non-enforcement of rules and procedures

31.7

Lack of incentives/security

32.5

Weak leaderships at all levels

33.1

Unclear rules with loopholes for manipulation

33.6

Unfair business competition and practices

34.0

Strong protective social net of the accused

35.9

Inaction of cases reported

36.3

Lack of information & transparency on rules & procedures

36.4

Discriminatory & non-uniform application of laws and rules

40.9

Needs

42.8

Wants

55.9
0.0

10.0

20.0

30.0

Percentage

154

40.0

50.0

60.0

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

IV. FORMS OF CORRUPTION
As per the CPS 2006, nepotism and favouritism are the most prevalent forms of corruption followed bymisuse of public funds and bribery.

Collusion between private &private in procurement

22.9

Forms of corruption

Privatization of public institutions
for private gains

21.1

Fronting involving Bhutanese to non-Bhutanese

26.7

Fronting involving Bhutanese to Bhutanese

27.3

Collusion between public &private in procurement

27.8

Misuse of public assets

33.8

Misuse of public facilities

34.2

Delaying decision/action deliberately
for corrupt motives

35.4

Delaying decision/action deliberately
for corrupt motives

35.4

Misuse of natural resources

36.3

Misuse of human resources

37.8

44.0

Taking and giving bribes

47.0

Misuse of public funds
Nepotism, favoritism(recruitment, promotion, transfer, etc.)
0.0

55.5

10.0

20.0

30.0

40.0

50.0

60.0

Percentage

155

RESOURCE MATERIAL SERIES No.79

V. EXTENT OF CORRUPTION
The CPS 2006 survey also found that corruption is pervasive across all levels and sectors but is moreprevalent at middle level.
Figure 3: Prevalence of corruption by level of authority

90
Government

Percentage of respondents

8070

Corporations

60
Private sector

50
40
30
20
10
0
Top Level

Middle Level

Lower Level

Levels of Authority

VI. COUNTER-CORRUPTION MEASURES
A. Enforcement Agencies
1. Anti-corruption Commission (ACC)The ACC has been established as an independent body, headed by a chairperson and two commissioners
to prevent and combat corruption in the country.4 The ACC also ensures that the reports of the Royal Audit
Authority are meted out with appropriate actions by the concerned agency. Any individual can file a reportwith the ACC and, based on merits, the ACC takes up the case.
2. Royal Audit Authority (RAA)
The Royal Audit Authority was established in 1977 to audit the accounting systems in the country.
Initially, the RAA also shouldered the responsibility of prosecuting those charged with corruption with theassistance of the Royal Bhutan Police. Today the action against the findings of the RAA is to be initiated by
the line ministry and the ACC takes the case if no action has been taken against the offender.
3. Department of Revenue and Customs (DRC)
The DRC is a department under the ministry of finance primarily entrusted with the activity of collecting
revenue for the government. Thus, the department also reviews whether the collection of revenue by thegovernment agencies are properly accounted or not. Irregularities by the agencies or individuals officials arealso reported to the concerned agency management.
4. Attorney General Office (AGO)The OAG was initially established as Office of Legal Affairs in April 2000. With the passing of the
Attorney General’s Act 2006, the office then became the Office of the Attorney General as per section
4 The Constitution of the Kingdom of Bhutan, Article 26, section 1.

156

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

3, Office of the Attorney General Act, 2006. The OAG is entrusted with the job of prosecuting andrepresenting the government, drafting and reviewing bills, providing legal advice and other services of alegal nature as assigned by the government. Thus the OAG is entrusted with the important function ofprosecuting offences in all types of corruption.
5. Royal Bhutan Police (RBP)The RBP was established on 1 September 1965 as an independent body to maintain law and order. Its
responsibility is to prevent the commission of crime and to detect crime already committed. Since it has toperform the function of prosecuting criminals in court, corruption cases are jointly prosecuted in collaboration
with the concerned ministry or the OAG. The RBP also assists the ACC as and when required by the ACC.
6. Judiciary
The judiciary of Bhutan commenced functioning as separate organ from 1968 with the institution of
the High Court headed by the Chief Justice of Bhutan. Presently the judiciary consists of the High Court,
District Courts and Dungkhag Courts presided over by the Chief Justice, Dzongkhag Drangpons andDungkhag Drangpons, respectively.
The Bhutanese legal system is based on Buddhist natural laws. Although the procedural system
is principally adversarial, it also has certain elements of the inquisitorial system. This principle of theadversarial system is enshrined in the Bardo thoedrel 5 which is also propagated to the people in the form ofdance during annual festivals throughout the country.

B. Strategies Adopted by ACC
The ACC has created three divisions in order to prevent corruption. It has the Prevention Division,
Public Education and Advocacy Division and Investigation Division.
The prevention division has three sections, consisting of the System Review Section, the Research
Section and the Asset Declaration Section. The System Review section concentrates on organizational
systemic studies aiming at both the short term as well as long term objectives. Preventive studies are basedon the following sources:
•
•
•
•
•

Systemic flaws discovered as a result of investigation;
Proactive studies undertaken in corruption prone sectors;
Findings by the Royal Audit Authority;
Regular meetings with the senior management of government departments and public bodies and;
Requests made by government departments or private agencies.

The Research Section undertakes research initiatives in relevant fields from local as well as global
perspectives with long-term objectives such as policy changes. Research can provide useful information in
formulating preventive strategies, adopting best practices, strengthening public education and supporting
proactive investigation.
The Asset Declaration system provides an avenue to check the accumulation of wealth that isdisproportionate to the legal source of income. This can promote trust and confidence of the general citizens
in public officials occupying influential positions.
Further, the Public Education & Advocacy Division has been created to ensure the general public’s
awareness of corruption and its impact and influence, and to foster an attitude, behaviour and culture of
intolerance towards corruption and to uphold social values and the ethics of honesty and integrity.
The Investigation Division of the Commission is mandated to investigate corrupt activities of thegovernment, corporate and private sectors through both reactive and proactive approaches.

C. Filing of Complaint and Prosecution
As per section 59 of the Anti-Corruption Act of Bhutan 2006, any person can lodge a complaint with the
5 Book of the dead-Garud Puran.

157

RESOURCE MATERIAL SERIES No.79

ACC against a public servant, public entity or other person who committed or is attempting to commit anoffence of corruption. Complaints, irrespective of the content, are registered by an officer and go througha rigorous process of review by the Complaints Management Committee (CMC). After the investigation,cases that warrant conviction are forwarded to the OAG for prosecution in the court of law.
The complaint management system of the ACC is as shown below:

Phone-in

EmailReferral by agencies &RAA, etc.

Walk-in

ACC Website

Information
received

Post & fax

Revealed during
investigation

Registration
Review by Complaints
Evaluation Committee (CMC)

Review by Commission
Close/Share/Discreet Enquiry/Systems/Investigating & Database
Non-pursuable

Non-Pursuable; Baseless,& not related to Info.

Pursuable
Investigation
Division

Discard bin

Systematic flaws
Prevention & Public
Education Divisions

Pursuable

Investigation

Court

Agencies foractionDiscreet Enquiry

Surveillance

Share with agencies

RAA

Systems & Public
Education data base158

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

VII. OFFENCES RELATED TO CORRUPTION
The Penal Code of Bhutan 2004 (Penal Code) has been enacted to repeal certain provisions of theThrimshung Chhenmo (Supreme Law) of 1959 that are not accepted in the present day and also to cover up
various offences not incorporated in the Thrimshung Chhenmo . Some of the provisions incorporated in the
Penal Code to deal with corruption are:
•
•
•
•
•
•
•

Laundering of the proceeds of crime and smuggling (Sections 277, 279 & 280);
Embezzlement (Section 287);
Bribery of a public official and commercial bribery (Section 289 & 292);
Official misconduct (Section 294);
Forgery of and tampering with public records and documents (Sections 296, 298 &300);
Deceptive practice (Section 309);
Obstruction of lawful authority and public service (Section 422 & 424).

Common among the above offences charge sheeted to the court are embezzlement, forgery, official
misconduct, tampering with public records and deceptive practices including fronting. The Penal Code also
provides for restitution, confiscation and recovery of criminal proceeds under sections 46, 47 and 48. This
could be done as provided under the criminal procedure code for freezing of accounts, seizure, etc.

VIII. CHALLENGES TO COUNTER-CORRUPTION ACTIVITES
Bhutan has just stepped into a constitutional democratic system and its economy is still in a developing
stage. Since the means has to justify the ends, it is the task of the government, corporate and private entities
to provide the working class with adequate means. Further, because of globalization and growing consumerism,
the dealing agencies have to manage corruption involving members of international communities.
Although civil servants are trained with modern management and administrative methods, the generaltendency of complacency still persists. Besides, there is need for inculcating a business oriented culture(productivity) in government service which will remain for some time.
Bhutan is a small country with a small population where everyone is known to one another and being so,
the tendency of ‘Small Society Syndrome’ makes the objective of bringing the corrupt to task more arduous.
And one thing that hinders the assessment of bribery is the culture or the tradition of offering Chhanjay 6 andreceiving Soelra .7 It is difficult to draw a line between gift-giving and bribery and often the offence of bribery
is overshadowed by the culture of gift-giving.
There is also a dearth of professionally trained personnel and amenities so as to effectively carry out
research and investigation. The lack of adequate allowances and incentives is another factor that hinders the
personnel of the agencies from effectively probing corruption.

IX. CONCLUSION
The government of Bhutan has adopted a zero tolerance policy to corruption so as to build up a strong
foundation for a vibrant democracy. Since the inception of the ACC, corruption cases have multiplied tothree times the former level. It has cracked down on not only on the government service employees but
also on corporate employees as well as on private business industry. Although the judiciary of Bhutan is also
committed to supporting the prosecution of corruption cases, not all cases of corruption could be brought tojustice due to lack of evidence beyond reasonable doubt and having to play the role of an umpire as mandated
by the constitution. However, smallness is also seen as an advantage considering the efforts of educating
the masses and keeping watch on the functioning of the handful of government agencies, and corporate andprivate sector actors.
Bhutan signed the United Nations Commission against Corruption (UNCAC) in 2005 but has not yet
ratified it.
6 Chhanjay is a tradition or the act of bringing gift to officials.

7 Soelra is culture or the act of giving gift by an official to a person subordinate to him or her.

159

139TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION(IN THE CONTEXT OF NEPAL)
Rajan Prasad Bhattarai*

I. HISTORICAL BACKGROUND
After the unification of Nepal, the great King Prithvinarayan Shah declared that the bribe takers andbribe givers were the greatest enemies of the nation and deserved the death penalty. This proves that
corruption prevailed in the 18th century and corruption was considered to be a serious crime. Many rulers
after that took various measures to control corruption. After the political change in 1951, The Prevention of
Corruption Act, 1960 was implemented to maintain good governance. Similarly, the State Cases Act, 1960
and the Evidence Act, 1974 were implemented, adopting the principles of criminal justice. These two Acts
are considered milestones in the field of criminal justice. These legal provisions were further strengthenedby establishing the Commission for the Prevention of Abuse of Authority as a Constitutional body in 1975.
Investigation, accusation and adjudication of corruption cases were the responsibilities of the Commission
for the Prevention of Abuse of Authority. After the people’s movement in 1990, the constitution of theKingdom of Nepal, 1990 provided for the establishment of a Commission for the Investigation of Abuse of
Authority (CIAA). However, the CIAA was vested only with the power of investigation and accusation.

II. THE EXISTING CORRUPTION CONTROL SYSTEM IN NEPALThe Interim Constitution of Nepal, 2007 was promulgated after the second people’s movement in 2006.
The Constitution provides for the Commission for the Investigation of Abuse of Authority. The president of
Nepal, with the recommendation of the Constitutional Council, appoints the Chief Commissioner and otherCommissioners. The term of the office of the Chief Commissioner and other Commissioners is six years
from the date of appointment. They can do their work freely and fairly since they shall only be removed by
an impeachment resolution passed by the parliament.1

A. Functions, Duties and Powers of the CIAA2
The following are the functions, duties and powers of the CIAA as mentioned in the Interim
Constitutional of Nepal, 2007.
•
•
•
•
•

To conduct inquires and investigations of improper conduct or corruption by a person holding any
public office (subject to the exception of certain public officials);
To write to the concerned authority for warning or departmental action or other actions, if it findsthat any person holding public office has misused his or her authority by improper conduct;
To prosecute the person holding public office and other involved in the crime, if it finds that theperson holding public office has committed an act defined by the law as corruption;
To submit an annual report to the president and president will submit the report to the parliament;
To investigate and inquire into cases of any official of a constitutional body removed from their officefollowing an Impeachment Resolution on the ground of misbehaviour, any Judge removed by the
Judicial Council on similar charges, or any person proceeded against under the Army Act after they
are removed from office.

The above mentioned Constitutional provisions show that CIAA can only investigate and file the cases* Deputy Attorney, Commission for the Investigation of Abuse of Authority, Kathmandu, Nepal.
1 Article 119 of the Interim Constitution of Nepal, 2007.
2 Article 120 of the Interim Constitution of Nepal, 2007.

160

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

against corrupt officials in ‘public institutions’. The CIAA Act defines ‘public institutions’ as follows:3
•
•
•
•
•
•

A company, bank or committee wholly or partly owned or controlled by the Government of Nepal;
Universities, campuses, schools, research centres and any other academic or educational institutions
run by the Government of Nepal;
Local bodies;
Institutions run with loans, grants or guarantees of the Government of Nepal;
Institutions with full or partial ownership of the institutions run by the government;
Any other institution designated as a public institution in the Nepal Gazette.

Similarly, “Improper Conduct” denotes any of the following acts committed deliberately or throughnegligence by the person holding a public post as defined in the Commission for the Investigation of Abuse
of Authority (CIAA) Act, 1991:4
•
•
•
•
•
•
•
•
•

Refusal to undertake any work under one’s authority or undertaking any work outside one’s
authority;
Not following mandatory procedure while making any decision or giving instruction;
Use of authority vested in oneself for purposes contrary to the relevant law, decision or instruction;
Use of discretionary power with a mala fide intention or selfish desire;
Unauthorized obstruction of the work of other office, officer or employee or getting any unauthorized
work done from such office, officer or employee under pressure;
Shifting one’s responsibility by sending the work to be done by oneself to another officer;
Not fulfilling the responsibility demanded by the nature of one’s position;
Getting work done to one’s own benefit under improper influence or enticement to the employee
under one’s influence or control; orAbuse of immunity, facility or concessions associated with the post.

Likewise, “Corruption” implies the guilt punishable under the prevalent law pertaining to the preventionof corruption.
The Corruption Prevention Act, 2002 has defined corruption as:5
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Taking or giving a bribe or agreeing to take a bribe;
Procuring goods or services free of cost or at lower cost;
Accepting contributions, charity, gifts and subscriptions;
Taking commissions;Public servants leaking revenue;
Working with the mala fide intention to incur illegal benefit or loss;
Public servants preparing wrong documents;
Wrong translation;
Tampering with Government documents;
Destroying Government or public agencies’ documents;
Breach of confidentially of the question paper or changing the results of an examination;
Public servants indulging in illegal commerce and business;
Claiming positions not versed upon;
Giving false descriptions;
Damage to public property;
Exerting illegal pressure;
Giving wrong reports;
Illegal acquisition of property;
Committing attempts;
Accomplice.

False certificate related cases are the most common among the above mentioned crimes filed by CIAA
in the Special Court. For appointment and promotion, the public servants need higher level academic
3 Section 2 of the CIAA Act, 2002.
4 Section 3 of the CIAA Act, 2002.

5 Chapter 2 of the Prevention of Corruption Act, 2002.

161

RESOURCE MATERIAL SERIES No.79

certificates. Some of them submit fake certificates from Indian schools and universities.
Fake certificates for appointment and promotion create two types of problem in public administration. On
the one hand, work can’t be done effectively by fake certificate holders who are not qualified for the post. On
the other hand, the capable candidates do not get the chance for employment and promotion. This will affectthe overall development of the country.
The CIAA files the cases in the Special Court if it finds the certificates fake. According to the Preventingof Corruption Act, 2002, the fake certificates holders are sentenced to six months to one year’s imprisonment
and also fined depending on the degree of the offence committed. CIAA has won about 95% of cases against
fake certificates holders. They are removed from their jobs after the decision according to the law.
The following are the statistics related to fake certificates cases filed in the Special Court by the CIAA in
the last three years.6
Fiscal Year2007-2008
2006-2007
2005-2006

Total registered
cases
70
115
114

Cases related to fakecertificates
54
93
69

Percentage
77.14
80.86
60.52

B. Investigation Methods of the CIAAThe CIAA uses diverse methods of investigation for improper conduct or corruption committed bya person holding any public post. It receives written complaints from various sources and starts theinvestigation.
1. Sources of Complaint for the CIAA
• News published in news papers;• Official publications and reports;• Telephone, e-mail, fax, online complaints and other information through media;• News and information published in electronic media;• Information collected from other sources.
The complaints collected through the above mentioned sources are handed to the two Commissioners
with the opinion of the Chief of the Investigation Department. Then these complaints are investigated in
two stages, preliminary and detailed investigation.
During the preliminary inquiry, complaints are analysed on the basis of their merit and available
evidence. At this stage the division concerned collects records and evidence. If it appears to be a prima faciecase, the CIAA appoints an investigation officer for detailed investigation. The investigation officer makes
all necessary inquiries, records, statements of the accused, analyses the findings and submits a report to themeeting of the CIAA. Such report is reviewed by the meeting and decisions are made either to frame thecase or admonition or departmental action recovery of the loss or any other action on the basis of gravity of
the crime committed. In cases where the investigation leads to insufficient evidence, the case is disposed ofby the CIAA. The CIAA usually makes decisions through consensus.
In the beginning, corruption-related cases used to be filed in the general courts. The governmentof Nepal established a Special Court in 2002 for effective and fair trial of corruption related cases. The
government of Nepal, on the recommendation of the Judicial Council, appoints one chairman and two
member judges from the Appellate Court. The Special Court initiates proceedings and finalizes thecorruption cases. However, appeals can be filed in the Supreme Court.

6 18th Annual Report of the CIAA, 2007-2008.

162

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

Here are the comparative statistics of the disposed complaints by CIAA for the last three years:7
Fiscal Year2007-2008
2006-2007
2005-2006

Registered
Complaints
2732
3564
4324

Complaints
decided
2135
2976
3353

Complaints
remaining
547
588
971

Decidedpercentage
78.14%
83.50%
77.54%

The comparative statistics of the cases registered in the Special Court and cases decided for the last
three years.8
Fiscal Year2007-2008
2006-2007
2005-2006

Cases
registered
70
115
114

Cases
decided
127
171
109

Cases wonCases lost

95
140
89

32
31
20

Won
percentage
74.80%
81.87%
82.00%In addition to above mentioned works, CIAA can also perform as an Ombudsman mentioned in theInterim Constitution of Nepal, 2007 and CIAA Act, 1991. The CIAA can also give suggestions to theGovernment of Nepal for good governance.

III. EXISTING CRIMINAL JUSTICE SYSTEM IN NEPAL
With the promulgation of the Interim Constitution of Nepal, 2007, the concept of an independent andcompetent system of justice, the concept of the rule of law, and human rights and universal principles of thejustice system have been introduced.
In order to uphold and implement the concept of an efficient and impartial criminal justice system, a new
State Cases Act, 1992 further elaborated the procedures of investigation and prosecution. According to theInterim Constitution of Nepal, 2007 and the State Cases Act, 1992, the institutions involved in the criminal
justice system are as follows:

A. Police
Under the Home Ministry, a police organization has been established, which is regulated by the
Police Act, 1956. The Police Headquarters is the top organ of the police organization. Under the Police
Headquarters 75 District, one Police Office has been set up in every district. This is the grassroots law
enforcement unit entrusted with the responsibility to investigate crime within its territorial jurisdiction.
District Police Officers are directly involved in the investigation of the crimes under the territorial
jurisdiction.
B. Public Prosecutors
The Attorney General of Nepal is constitutionally responsible for prosecuting in criminal cases. The
Attorney General has the power to delegate the responsibility for prosecution of criminal cases to his or
her subordinates. There are 75 district level offices and 16 Appellate offices under the office of the Attorney
General of Nepal.
C. Courts
The District Court is the court of first instance. It has the power to entertain all the criminal cases
except otherwise provided by any law. There are 75 District Courts in Nepal. All cases in the District Courts
are tried by a single Judge Bench. The Supreme Court of Nepal is the apex court. Constitutionally it is a
Court of Record. The Constitution of Nepal has conferred on the Supreme Court vast and extraordinary
7 18th Annual Report of the CIAA, 2007-2008.
8 18th Annual Report of the CIAA, 2007-2008.

163

RESOURCE MATERIAL SERIES No.79

jurisdiction in order to reinforce the fundamental rights of citizens. The Supreme Court has the power todeclare any legislation void for being inconsistent with any provision of the Constitution. Immediately below
the Supreme Court there are 16 Appellate courts. District Courts within the territorial limitation are subject
to review by the Appellate Courts on appeal.
In this way, the institutions involved in criminal justice system are the police, public prosecutors andcourts. The police have the responsibility of investigation, public prosecutors have the power of prosecution
and the courts give verdicts in criminal cases. However, for corruption related cases investigation andaccusation are the remit of the CIAA and adjudication is the remit of the Special Court as per the Special
Court Act, 2002.

IV. PROBLEMS IN CORRUPTION CONTROLIn Nepal, corruption has been considered a serious crime for a long period of time and various
measures have been taken to control it. The Commission for the Investigation of Abuse of Authority has
been established as the supreme institution to control corruption and it has been working continuously
throughout the nation. However, the country is not able to control corruption. The number of complaints andcourt cases against corruption shows that corruption is deeply rooted in Nepal. The following are the major
hindrances to controlling it:(i) Corruption in the private sector is beyond the jurisdiction of the CIAA;(ii) Lack of skilled personnel;(iii) Lack of modern equipment;(iv) No regional offices of its own;(v) Low pay scale;(vi) Lack of public awareness;(vii) United Nations Conventions against Corruption not ratified.

V. CONCLUSION
Nepal has given special priority to controlling corruption. The CIAA has been adopting punitive,
preventive and promotional activities to control corruption. Because of the political instability in the
country the United Nations Convention against Corruption (UNCAC), which was signed by former Chief
Commissioner on 10 December 2003, has not been ratified by the parliament yet. In the present context,
Nepal has been declared a Federal Democratic Republic Country. A general election for the Constitutional
Assembly has been conducted. The nation is in the process of writing a new constitution. In this context,
on the one hand, voices have been raised from the CIAA and various organizations to ratify the UNCAC.
On the other hand, the Government of Nepal has implemented the following Acts to work according to theprovisions of the UNCAC for corruption control.
The Acts are as follows:(i) Prevention of Money Laundering Act, 2008(ii) Right to Information Act, 2007(iii) Public Procurement Act, 2007(iv) Good Governance Act, 2008(v) Electronic Transaction Act, 2006.
In addition to these, voices have been raised to include corruption in the private sector within thejurisdiction of CIAA.
In conclusion, it is hoped that if the United Nations Convention against Corruption is ratified by theparliament, international co-operation will be gained to control corruption. Similarly, if corruption in theprivate sector falls within the jurisdiction of CIAA in the new Constitution of Nepal, we will be able tocontrol corruption.

164

139TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION
Shreelal Poudel*

I. THE NEPALESE CRIMINAL JUSTICE SYSTEMThe Nepalese criminal justice system is more or less influenced by the common law system, andoperates as follows:
A. Investigation and prosecution;
B. Court hearing and adjudication.

A. Investigation of Crime
The Nepal Police are responsible for investigation of all criminal cases. The police function under thegeneral supervision and control of the Ministry of Home Affairs of the Government of Nepal.
The crime investigation begins with the filing of the First Information Report (FIR) to a police post by
the victims or his or her near relatives. The police investigate crime subject to the District Government
Attorney’s instruction. On completion of investigation, the police prepare a case file and submit it to theDistrict Government Attorney who decides to institute or not to institute a suit.

B. Prosecution
All criminal offences to which Government is a plaintiff are defended by Government Attorneys.
Government Attorneys are under the Attorney General of Nepal, who is the principal legal adviser togovernment of Nepal.
The Attorney General and his Subordinates are responsible for representing the Government for theprotection of the rights and interest of the state. Similarly, the Attorney General is the final authority to
decide whether or not to prosecute a person in a criminal offence, and for providing legal opinions to thecentral government agencies.
Sixteen Appellate Government Advocate Offices and 75 District Government Advocate Offices function
under the Attorney General and are responsible for defending and prosecuting criminal cases.

C. Court
Under the Interim Constitution of Nepal, 2007, there are three categories of court:(i) Supreme Court
This is the supreme court of the land. This court has both ordinary and extra-ordinary jurisdiction.
Powers include hearing appeals against judgments delivered by the Courts of Appeal. The extraordinary power of the court includes the power of issuing the writ petitions. It also has power of judicial
administration over the whole country.
(ii) Appellate Court
The Court of Appeal is the second tier in the hierarchy of the courts in Nepal. Sixteen Courts of Appeal,in various locations, are established under the Supreme Court.
The Courts of Appeal are empowered to hear appeals from the district courts under their jurisdiction,issue writ petitions and try certain cases under their respective jurisdictions.
* Section Officer, Ministry of Law, Justice & Constituent Assembly Affairs, Government of Nepal, Kathmandu.

165

RESOURCE MATERIAL SERIES No.79(iii) District Courts
The District Court is located in a district, administrative unit. The District Courts are the court of first
instance. The courts are responsible for trying all the civil and criminal cases.

II. CORRUPTION CONTROL LAWS IN NEPAL
A. Understanding Corruption
Corruption is a complex and multi-faceted phenomenon with multiple causes and effects, as it takes on
various forms and functions in different contexts. The phenomenon of corruption ranges from a single actof activity contradicted by law to a way of life of an individual or group. It is the misuse of public goods bypublic officials, for private gain. This private gain is achieved by ignoring prohibitions against certain acts.
This is the abuse or misuse of public offices and professional rights and duties for personal gain.
Corruption not only undermines ethical values and justice, it damages democratic institutions, thenational economy and the rule of law. Corruption facilitates other forms of serious crimes, in particulartransnational organized crime, human trafficking and fiscal crime such as money laundering. Corruption is
also the cause of poverty and underdevelopment and diverts funds intended for development. It makes it
difficult for the government to provide basic services, eliminate inequality, provide justice, and to utilize theavailable resources, including foreign investment and aid.

B. Corruption in Nepal
For at least 15 years, and more in recent years, the problem of corruption has been at the centre of thepolitical agenda in Nepal. It is recognized as one of the chief causes of Nepal’s under development. It is very
widespread, has different manifestations. This is really a great challenge to modern Nepal. Businesspersons,politicians, government officials, academics, and even consumers, are responsible for this.
C. Corruption Control Laws in Nepal
Nepal has long made efforts to control corruption. Legislation on the control of corruption started in
1957. Recent legislation was enacted in 2002.
The main laws relating to corruption control are as follows:
1. Prevention of Corruption Control Act, 2059 (2002)
This Act has defined corruption as the following activities and penalizes:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Taking or giving a bribe or agreeing to take a bribe;
Procuring goods or services free of cost or at lower cost;
Accepting contributions, charity, gifts and subscription;
Taking commissions;Public servants preparing wrong documents;
Making wrong translations;Tampering with government documents;
Destroying government or public agencies’ documents;
Breach of confidentiality of the question paper or changing the result of the examination;
Public servants indulging in illegal trade and business;
Claiming positions which one does not hold;
Giving false descriptions;
Damage to public property;
Exerting illegal pressure;
Giving wrong reports;
Illegal acquisition of property;
Accomplice/inciting corruption offences.

2. Commission for Investigation of Abuse of Authority Act, 2048 (1991)
Commission for Investigation of Abuse of Authority Act, 1991 defines the abuse of authority as improper
conduct. Improper conduct denotes any of the following acts committed deliberately or through negligenceby the person holding a public post:

166

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

•
•
•
•
•
•
•
•
•

Refusal to undertake any work under one’s authority or undertaking any work outside one’s
authority;
Not following mandatory procedure while making any decision or giving any instruction;
Use of authority vested in oneself for purposes contrary to the relevant law, decision or instruction;
Use of discretionary power with a mala fide intention or selfish desire;
Unauthorized obstruction of the work of other offices, officers, or employees or getting any
unauthorized work done from such offices, officers or employees under pressure;
Shifting one’s responsibility by sending the work to be done by oneself to another officer;
Not fulfilling the responsibility demanded by the nature of one’s position;
Getting work done to own benefit under improper influence or enticement to the employee under
one’s influence or control; orAbuse of immunity, facility or concession associated with the post.

3. Anti- Money Laundering Act, 2008
The Act aims to prevent conversion of proceeds of crime into legal money. It establishes a department toadminister the Act.
4. Good Governance Act, 2008
This Act aims to have good governance in the country.
5. Public Procurement Act 2007
This Act aims to maintain competition and transparency in procurements by public bodies including
government bodies, Government controlled and funded bodies.

III. CORRUPTION CONTROLLING BODIES
A. Commission for the Investigation of Abuse of Authority (CIAA)The Commission for the Investigation of Abuse of Authority, publicly known as CIAA, is a constitutional
body, which serves as the investigating and prosecuting authority in corruption cases and the watchdog
authority against the abuse of authority. The Interim Constitution of Nepal, 2007 provides for it in explicit
terms in part 11, Article 120. Various actions, including prosecuting the concerned public official in a court oflaw, may be taken by the CIAA.
Pursuant to the constitution, functions, duties and powers of the commission are as follows:•••

Inquiry and investigation of improper acts or corruption by a person holding public office;Recommending departmental action or any other necessary action against the person who hasabused authority by committing an improper act;
Filing cases against persons alleged to have committed corruption.

The CIAA, the main investigating and prosecuting body in corruption cases, filed 70 cases to the Special
Court in the last fiscal year and in 28 cases the commission recommended departmental action to theconcerned body. The commission called for attention in 19 cases too.

B. National Vigilance Center
National Vigilance Center (NVC), established by the Nepal Government, is a body of the government
intending to control corruption and bring about good governance in the country. It is established as per chapter 4of the Corruption Control Act, 2002. It functions under the direct control and supervision of the Prime Minister.
The main objective of the Center is to play a preventive and vigilant role to ensure good governanceby controlling work delays, administrative and financial irregularities, mis-collection of public revenue andother misdeeds that exist in the various steps of the government and public sector organizations.

C. Special Court
This court hears the corruption cases filed by CIAA. This is the court of first instance in respect of
corruption. Judges are deputed from the ordinary Appellate Court. It can have more than two benches.

167

RESOURCE MATERIAL SERIES No.79

As of 2007, the Special Court tried 142 cases related to corruption. There are four categories ofcorruption, according to court data: 35 cases relate to illegal property; 30 relate to decision making (at policy
level); 73 are of fake certificates; and four concern bribery.

IV. ANTI-CORRUPTION NATIONAL POLICYTo prevent corruption, the following measures need to be incorporated into the draft anti-corruption
national policy and strategy:
•
•
•
•
•

•
•
•

Co-ordinating preventive anti-corruption policies and best practices;
Collaborating with each other in the prevention of corruption;
Disseminating knowledge on prevention of corruption;
Ensuring anti-corruption bodies are independent and free from undue influence;
Ensuring transparency, accountability, integrity and rule of law in the public sector, conduct of public
officials, public procurement and management of public finance, including objective and transparent
systems for recruitment, promotion, retirement of civil servants; legislative and administrative
measures to establish criteria for candidature and election to public office; transparency in fundingof candidates for elected public office and funding of political parties; standards of conduct for public
officials; transparency, completion and objective criteria in decision making in public procurement
and public finances;Strengthening integrity and independence of the judiciary and prosecution services and preventing
opportunities for corruption within these institutions;
Preventing corruption in the private sector, including provision of proportionate and dissuasive civil,
administrative or criminal penalties for failure to comply with such measures;
Public reporting and participation of society by facilitating access of the general public to informationon the organization, functioning and decision making of public administration and promoting theactive participation of civil society, NGOs and community-based organizations in the fight against
corruption.

V. ROLE OF NON-GOVERNMENT ORGANIZATIONS IN THE PREVENTION OF
CORRUPTION
NGOs have a significant role in preventing corruption by raising public awareness against corruption.
There are number of NGOs in Nepal working in such a role.

VI. ARRANGEMENTS FOR IMPLEMENTATION OF THE UNITED NATIONS CONVENTIONAGAINST CORRUPTION IN NEPAL
Nepal signed the Convention on 10 December 2003 in Merida, Mexico. Preparation of the administrativeand legislative measures required upon becoming party to the convention are in progress.
By a Cabinet decision, the Ministry of Law, Justice and Parliamentary Affairs (the Ministry) has been
given responsibility to work as a focal point and co-ordinating agency of the Convention at a national level.
The Ministry is also assigned the work of the central depository of all types of treaties and conventions.
The Government of Nepal constituted a Working Committee under the chairpersonship of the Joint
Secretary of the Ministry of Law, Justice and Parliamentary Affairs with the representatives of the Officeof the Prime Minister and Council of Ministers, Ministry of Home Affairs, Ministry of Finance, Ministryof Foreign Affairs, the Commission of the Investigation of Abuse of Authority as members and theUnder Secretary of the Ministry of Law, Justice and Parliamentary Affairs as the member-secretary. The
Committee has identified an extensive list of legislative, administrative, institutional and policy reform
measures required for the implementation the Convention at the national level.
Considering the Report of the above mentioned Working Committee, the Government has also
constituted a high level Taskforce under the chairpersonship of the Secretary to the Ministry of Law, Justiceand Parliamentary Affairs with the Joint Secretary level representatives of the Ministry of Home Affairs,
Ministry of Finance, the Commission for the Investigation of Abuse of Authority, and the National Vigilance

168

THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

Centre as members and the Joint Secretary to the Ministry of Law, Justice and Parliamentary Affairs as themember-secretary. The reinstated House of Representation by its resolution dated 2063. 06.25 (11 October2006) has also directed the Government to ratify the Convention.

VII. MEASURES TO BE TAKEN
Nepal is under a moral obligation to create a conducive environment to become a party to the Convention
and to refrain from such acts which would defeat the object and purpose of the Convention. To fulfill theseobligations, the following tasks are necessary.

A. Policy and Strategy Reforms
An anti-corruption policy and strategy in line with the Convention needs to be developed reflecting
the principles of the rule of law, transparency and accountability. It should consist of awareness-raising of
the importance of the participation of civil society, non-governmental organizations and community-basedorganizations, promotion of education against corruption through the development of school and university
curricula, and collaboration with regional and international organizations.
B. Legislative Reforms
1. New Legislation
The Anti-money Laundering Act, Public Procurement Act, Good Governance Act, and Right toInformation Act have recently been passed. The legislature must enact laws on Mutual Legal Assistance;
Extradition; Protection of Witnesses, Victims or Experts; Recovery of Assets acquired through corruption/transfer of proceeds of crime; Transfer of Prisoners; Conflict of Interest; Whistle Blower Protection;
Transparency; Corruption in the Private Sector; Corruption in Foreign Public Officials and Public Officialsof Public International Organizations. The government must formulate policies on anti-monopoly practices;integrity in public life; public interest disclosure; other economic offences; transfer of criminal proceedings;
trading in influence; execution of decisions of foreign courts; disclosure of the income and expenditure ofpolitical parties; regulation of nongovernmental organizations; and trade fraud. Some of these measures arein the process of formulation and drafting.
2. Review and Amendment of Existing Legislation
The existing Prevention of Corruption Act; Bank and Financial Institutions Act; Political Parties
Act; Financial Procedures Act; Judicial Council Act; Military Act; Companies Act; Nepal Rastra Bank
Act; Insurance Act; Civil Service Act; laws relating to the service and condition of the employees ofpublic corporations/agencies; Partnership Act; Evidence Act; Private Firm Registration Act; Association
Registration Act; Commission for Investigation of Abuse of Authority Act; and the Prison Act, need to bereviewed and amended.

VIII. INSTITUTIONAL REFORMS AND STRENGTHENING
The following institutions need be reformed and strengthened in light with the Convention:
1.
2.
3.
4.
5.

The Commission for Investigation of Abuse of Authority;
National Vigilance Centre;
Special Court;
Related branch dealing with the cases of corruption within the Judicial Council;
Related branch dealing with the cases of corruption within the Nepalese Army.

IX. NEW INSTITUTIONSThe Anti-Money Laundering Act stipulates an Anti-Money Laundering Department. The Department will
be formed soon. Similarly, Nepal Rastra Bank is entrusted to work as a financial intelligence unit under the
Act.

169

RESOURCE MATERIAL SERIES No.79

X. CONCLUSION
Nepal’s drive to prevent corruption has a long history. Despite efforts going back a long time, corruption
has been not reduced but has increased furthermore. A strong legal regime against corruption, strong
enforcement of general laws, development of a law-abiding culture, an end to impunity for corruption, andimprovement of the socio-economic condition of government officials and also of the general public are-prerequisites for corruption control.
Legal provisions alone may not be sufficient to control corruption. Public awareness and collaborationand co-operation with the international community are also important.
With the enactment of the Prevention of Corruption Act 2003, investigation of corruption cases was
speeded up. However, the speed did not remain constant. With the formation of the new government, a newopportunity has arisen to start afresh in controlling corruption.

170

PART THREE

Work Product of the 141st International Senior Seminaron the Improvement of the Treatment of Offenders through the Enhancement ofCommunity-Based Alternatives to Incarceration

UNAFEIVISITING EXPERTS’ PAPERSCOMMUNITY-BASED ALTERNATIVES TO INCARCERATION
IN THAILAND: CURRENT TRENDS AND FUTURE PROSPECTS
Kittipong Kittayarak*

I. INTRODUCTION
Criminal justice systems around the world have been coping with increasingly difficult challenges amid
rapid changes in our political and socio-economic systems. Imbalanced development has weakened oursocial mechanisms, rendering them less effective in coping with economic hardships, which can contributeto the increased number of crimes. New trends also become visible where criminal activities are more
and more technologically sophisticated. Failure to cope with these new challenges could have serious
consequences as the functioning of the criminal justice system is at stake. Effectiveness in the treatment ofoffenders is one of the key indicators of healthy functioning of the criminal justice system. In order to avoid
the serious issues of case backlog and overcrowding of correctional facilities, it is imperative that offender
treatment systems are continuously improved and further developed.
This paper will begin with the assessment of current trends and the situation of institutional correctionsin Thailand. The discussion will then focus on the community-based treatment of offenders, where current
measures including drug diversion programmes whose implementation have been co-ordinated by the
Department of Probation, have played a key role in reducing the number of inmates in correction facilities.
The next section will discuss the role of the volunteer probation officers and community networks as key
initiatives to enhance the treatment of offenders through community-based alternatives to incarceration.
Finally, I will share my views on the key challenges of enhancing community-based alternatives toimprisonment in Thailand and the way forward.

II. CUSTODIAL TREATMENT OF OFFENDERS IN THAILAND:CURRENT TRENDS AND SITUATIONS
One of the most significant issues facing the criminal justice system in Thailand is coping with theextraordinary rise in prisoner numbers. From 1996 to 2002, correctional facilities in Thailand had to deal
with an unprecedentedly large number of inmates. The number, which was 103,202 in 1996, jumped to250,000 by the end of 2002. In Figure 1 the prison population for the period of 19 years is shown. Comparedto other countries in the Asia and Pacific region, the number of inmates in Thailand remains high – 253
inmates per 100,000 – as shown in Table 1.
Figure 1. Prison Population in Thailand from 1990 to 2008
250,000
200,000
150,000

Inmates

100,000
50,000
0

1990

1992

1994

1996

1998

2000

2002

2004

2006

2008

Source: Inmate Statistics Center, Policy Planning Division, Department of Corrections.

* Permanent Secretary Ministry of Justice, Thailand.

173

RESOURCE MATERIAL SERIES No.79

The rate of increase at this scale was quite unusual and cannot be accounted for under normal functioning
conditions of the criminal justice system. The disproportionate increase in the inmate population since 1998
could be attributed to Thailand’s criminal policy which criminalized offences related to drug use, especiallyamphetamines, to deter drug-related offenders.

Country
Indonesia
Macao
Malaysia
Myanmar
Sri Lanka
Singapore
Thailand

Table 1. Prison Population across Seven Countries in Asia and the Pacific in 2007
Portion of Female
Portion of Child
Total number
Total number
Inmates
Inmates(per 100,000 people)(percent)(percent)
128,876
56
4.7
0.4
797
174
22.1
6.1
50,305192
28.7
2.2
65,063126
15.0
1.6
25,537121
1.4
0.04
11,768267
10.0
4.7
165,316
253
15.1
3.9

Source: International Centre for Prison Studies, 2008.

Figure 2 shows that the number of inmates convicted of drug-related offences has almost doubled in 15
years, while the statistics for other offenders remain mostly unchanged, leading to a conclusion that thelarge number of drug-related offenders is the result of severe measures while the contribution from theincrease in criminal activities themselves might be only secondary.
Figure 2. Number of inmates convicted of drug offences versus other offences from 1993- 2007
150,000

Drugs related

100,000

Other offences

offences

50,00001993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Source: Inmate Statistics Center, Policy Planning Division, Department of Corrections.

There are two possible explanations for the increased number of inmates. It could signify the enhanced
effectiveness of the criminal justice system in bringing those who commit the crime to justice. The
implication of this interpretation is that the drug problem in Thailand has been properly taken care of since1997. Another explanation is that by over-criminalizing the possession or consumption of amphetamines, thedemand for the now drug is even higher than before, leading to higher prices and more profit-making, thus
more people who are willing to risk trading them. This graver theory signifies that severe punishment as adeterrence measure has been far from achieving its policy objectives.
Tables 2, 3 and 4 illustrate the inmate population profile according to their categories, types of offences
and terms of imprisonment. Based on these current statistics, it is clear that a large portion of Thailand’s
correctional resources is being used to provide custodial treatment for convicted offenders, while suspects
awaiting trial or final judgment constitute the second largest group of the population, contributing to thecurrent rate of imprisonment prior to conviction of nearly 30%. This rate implies that the criminal process

174

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

has not yet been able to provide a timely response to those awaiting trial and who must be assumed to beinnocent. Table 5 provides regional comparative data on this category of inmates, which shows that Thailand
is among the countries at the top of the list for having a large percentage of inmates on remand. Whenviewed by type of offence, inmates who have been convicted of offences related to drug use constitutethe largest group, almost 60%. It should also be noted that about half of the total population in prisons are
currently those serving relatively short terms (less than five years).
Table 2. Overall population of the Thai prison system according to major categories (As of 1 September 2008)
Categories
1. Convicted
2. On-remand
2.1 pending appeals
2.2 awaiting trial
2.3 awaiting investigation
3. Children and youths under detention
4. Relegated persons
5. Detainees
Total

Male
112,464
44,74422,354
9,576
12,814401
11
1,128
158,748

Female18,594
7,538
3,541
1,495
2,502
3
1
185
26,321

Total
131,058
52,28225,895
11,071
15,316404
12
1,313
185,069

Percentage
70.825
28.25
13.99
5.98
8.28
0.22
0.01
0.71
100

         Source: Inmate Statistics Center, Policy Planning Division, Department of Corrections.

Table 3. Prisoners Statistics by Type of Offences
Type of Offences
Male
FemaleTotal
1. Offence against property
25,911
1,647
27,558
2. Offence against narcotics law

Percentage
22.25

56,68915,34972,03858.16

3. Offence against life

8,798

277

9,075

7.83

4. Bodily harm
5. Offence against social security
6. Others

3,552
216
5,031

83
11
496

3,635
227
5,527

2.93
0.22
4.46

         Source: Corrections in Thailand 2008 - an annual report published by the Department of Corrections, Thailand.

Table 4. Prisoners Statistics by Sentence Terms
Sentence Term
Less than 3 months
3- 6 months
6 months – 1 year
1 – 2 years
2 – 5 years
5 – 20 years
20 – 50 years
Life imprisonment
Death penalty

Male
899
2,889
7,930
16,16432,70038,018
10,1491,653
113

Female
96
382
1,263
3,173
4,274
6,836
2,142
218
7

Total
955
3,271
9,193
19,33736,97444,854
12,2911,871
120Percentage
0.77
2.53
7.12
14.97
28.63
36.22
7.83
1.51
0.09

         Source: Corrections in Thailand 2008 - an annual report published by the Department of Corrections, Thailand.

There are numerous factors that contribute to the current picture of correctional treatment in Thailand. Lackof coherent and effective criminal policy has been one of the key factors, hindering any systematic attempt to
implement alternative approaches for parties of conflicting interests to get access to justice. Social norms, as canbe seen from the public attitude towards offenders, tend to be negative, and there is a strong inclination among

175

RESOURCE MATERIAL SERIES No.79

Thais to rely on formal criminal processes or legal action as means to solve their problems. These factors also
play significant parts in shaping the current situation of the Thai correctional system. Further, at the root of
the problem, the symptoms of which can be seen from the severe drug problems and high rate of crime, is theinability of the society to cope with the negative impact of globalization. Various institutions such as family,community, educational systems, and spiritual faith have been faced with new types of challenges and threats.
Table 5. Numbers of offenders awaiting trial in several countries in Asia in 2007
Country
Indonesia
Iran

Total Number of
Inmates

Total Number of
Inmates On-Remand

Percentage of
Inmates On-Remand

128,876
158,351387
39,271

0.3
24.8

Macao

797

176

22.1

Malaysia

50,305

14,43828.7

Myanmar65,063

7,417

11.4

Mongolia

6,593

1,305

19.8

Hong Kong

10,440

1,409

13.5

Japan

81,255

9,751

12.0

Taiwan60,346

7,181

11.9

Brunei

486

35

7.2

Laos

4,020

40

1.0

Singapore

11,768812

6.9

Thailand

165,316

43,313

26.2

Source: International Centre for Prison Studies, 2008.

Lack of co-ordinated effort to systematically deal with these challenges has put the entire criminal justicesystem under considerable pressure. The overcrowding problem has not only affected the corrections
system, but also the police, the prosecutors, and the courts. The burden caused by the anomalously sharp
rise in inmate numbers has been enormous. Despite the attempt to allocate new budgets to expand or build
new prisons, most very soon become crowded, worsening the living conditions for prisoners in terms ofspace, hygiene and overall prison environment.
Despite the overcrowding situation, the number of correctional staff has remained almost the same, evenduring the peak period of 1997-2006, and the current ratio of corrections officers to inmates is 1:32, while
the international standard is 1:5. This leads to a heavy workload for staff, which affects both their morale andthe quality of work to meet the treatment needs of inmates.
In order to respond to problems faced by the corrections system, especially the serious issue of overcrowding,various measures to introduce community-based alternatives to imprisonment have been considered and put towork under the management of the Department of Probation. In the next section some of these key measures
will be highlighted to illustrate the current situation and the direction for future development.

III. COMMUNITY-BASED NON-CUSTODIAL TREATMENT IN THAILAND:CURRENT TRENDS AND SITUATIONSIn Thailand, probation measures for adult offenders were provided for by the Penal Code of 1956 but they
were not actively implemented due to the lack of a specialized agency or probation officers to carry out the
court order. In 1979, the law on probation was proposed and a specialized agency was created and probation
officers were appointed to carry out court orders imposing conditions for the supervision and rehabilitationof offenders under suspended or deferred sentences. This law thus marked the beginning of the communitybased treatment of offenders in Thailand, under the responsibility of probation officers, volunteer probation

176

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

officers, and civil organizations based in the community. In 1992, the Department of Probation wasestablished to handle all adult probation nationwide.
During the first two decades of its operation, the Department of Probation focused its work on providing
probation programmes for offenders whose imprisonment terms were suspended. The programmes mainly
consisted of the supervision of offenders which could be combined with other types of support such as
education, counselling, rehabilitation, community service, and other social welfare. The overall objective of
these activities is to assist offenders in their effort to rehabilitate and successfully reintegrate into society to
become productive members of society without lapsing into reoffending.
Although the Department of Probation has done excellent work in providing successful adult probation
programmes, it was unable to expand its scope of work to cover new, community-based alternatives
to incarceration. Lack of overall criminal justice policy planning, lack of interagency co-operation andco-ordination among key actors, and inadequate funding were among the major reasons hampering the
successful introduction of community-based treatment as an alternative to the long-held practices based
mostly on retributive, custodial measures.
The overhaul of the criminal justice system which began in 1996 and culminated in 2002, when the
Ministry of Justice was reorganized and repositioned as the focal point for justice administration, also paved
way for the application of community-based treatment. In addition, changing policy on drug problems had
also opened the way for community-based treatment of drug abusers, who constitute more than half of thenumber of defendants in criminal cases and inmates in correctional facilities. The government recognized
the necessity of a new policy which took into account both the rehabilitation needs and the need to lessen
the pressure within the criminal justice system.
The growing interest in the concept of restorative justice is another factor that has a direct impact on
the promotion of community-based treatment of offenders in Thailand. As restorative justice emphasizes
informal methods of dealing with crime, particularly with the increasing the roles of victims, offenders, andthe community, it supports community-based treatment options.
One of the key milestones for such development was the cabinet resolution of 10 July, 2001 which specified
clear guidelines on how to reduce case backlogs and overcrowding. The so-called “July 10 Resolution”
recommended several non-custodial and community-based treatment measures as desirable approaches, andthus served as a road map for future development of community-based treatment measures in Thailand. Someof the key initiatives include the setting up of community mediation centres to settle certain kinds of disputes
within communities; the encouragement of the use of prosecutorial discretion not to prosecute, subject tocertain kind of conditions; the initiation of drug diversion programmes; and the expansion of the scope of
probation to include juvenile offenders as a new target group. The new policy has proved effective not only
by introducing new approaches for diversion of cases from the formal criminal justice process, but also by
providing alternatives to imprisonment that are more efficient in returning the offenders to society.
The Department of Probation, under the Ministry of Justice, has been the key organization in theimplementation of the July 10 Resolution. Its scope of work has been expanded to include probation
programmes for all types of offenders: juveniles and adults. Its probation programmes now cover all stages of
the criminal process, including the pre-trial, trial, or post-conviction stages. With a specialized agency in chargeof all the probation work for the suspect and offenders at all stages of the criminal process, the probation
system in Thailand is more focused and can benefit more from unified policy objectives, compared to the past.
With the expanded scope of probation work from traditional probation based on investigation of
information about offenders and supervision, to the new frontier of prevention and diversion, theDepartment of Probation has been forced to come up with innovative ideas to carry on its new assignments
and, at the same time, maintain the quality of its traditional functions. Apart from its original work ofproviding community-based programmes for only adult probationers, after the 2002 reform it has becomea key agency administering community-based rehabilitative measures and aftercare services to youth andadult probationers and parolees, providing compulsory treatment programmes for drug addicts, and working
to promote effective crime control and prevention through local community networks.

177

RESOURCE MATERIAL SERIES No.79

Figures 3 and 4 indicate the clear growth in the responsibility of probation officers in recent years, asseen from the change in the total number of cases handled by probation officers during the past 30 years
and the number of offenders who enter the probation system in comparison with those put in the custody ofprisons for the same period.
Figure 3. N umber of cases handled by the Department of Probation in the past 30 years. The number represents
cases coming from all types of work except community justice.
350,000
300,000
350,000
250,000
300,000
200,000
250,000
150,000
200,000
100,000
150,000
50,000100,000
50,000
-

1979

1981

1983

1985

1987

1989

1991

1993

1995

1997

1999

2001

2003

2005

1979

1981

1983

1985

1987

1989

1991

1993

1995

1997

1999

2001

2003

2005

Figure 4. N
 300,000
umber of offenders entering the probation system versus that of offenders placed under custody forthe past 30 years.

Inmates

250,000
300,000

Probationers
Inmates

200,000
250,000

Probationers

150,000
200,000
100,000
150,000
50,000100,000
0
50,000 1989

1990

1992

1994

1996

1998

2000

2002

2004

2005

2006

2007

1990

1992

1994

1996

1998

2000

2002

2004

2005

2006

2007

0
1989

From its moderate inception in 1979, the probation system has now overseen more than 1.5 million
offenders, with less than 20% recidivism after probation, indicating that most of the offenders who havebeen through treatment programmes can successfully reintegrate into society (see Table 6 for more detailed
statistics).

178

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
Table 6. Numbers of offenders who reoffended under probation programmes during 2004-2007.
Year

Total number of offenders
under probation

Number of reoffenders
under probation

Percentage of reoffenders
under probation

2004

176,799

23,867

13.50

2005

126,974

10,5908.34

2006

128,954

16,622

12.89

2007

137,178

20,98815.30

Source: Annual Reports of the Department of Probation for the period of 2004-2007.

IV. SELECTED COMMUNITY-BASED MEASURES CO-ORDINATED
BY THE DEPARTMENT OF PROBATION
Here are some of the community-based treatment measures that have been implemented by the
Department of Probation.

A. Probation of Adult Offenders
The current adult probation system in Thailand consists of:
1. Social Investigation
Social investigation in Thailand, in accordance with the Penal Code 1979 (B.E. 2522) Section 56, is conductedby probation officers in the pre-trial phase. Probation officers then have to prepare a pre-sentence reportrequired by the court before a sentence is imposed. The overall aim of social investigation is basically to gather
facts related to the offender and offence, and to make recommendations for courts on appropriate sentences.
A report contains the offender’s social background, circumstances of the offence, the risk the offender islikely to pose to the public and advice on suitable probation measures for individual offenders. The likelihoodof individual reform is also taken into account. Another essential part of the social investigation is the Risk/
Need Assessment to be included in the pre-sentence report.
During the social investigation, as a result of need assessment, probation officers may address theoffender’s needs and provide assistance, where appropriate, such as helping them with bail matters, meal
allowance, transportation assistance, etc. More importantly, at that stage, probation officers may also workwith victims of crime to give them a voice in the process, and provide them with support based firmly on
restorative justice principles.
2. Supervision
The supervision of adult offenders is an offender rehabilitation process. Probation officers will apply
many different techniques. Those include:(i)	The supervision of adult probationers with the use of counselling techniques as a rehabilitative tool;(ii)	The use of community-based rehabilitation programmes that are appropriate to individual offenders; and(iii)	Provision of assistance.
Supervision is a procedure to supervise, treat, support, and give counselling to probationers within thecommunity. Probationers will be given a helping hand to amend their habits, assist them to reintegrate into thecommunity as law-abiding citizens, and discourage them from reoffending or continuing their criminal lifestyles.
When courts impose suspended sentences or suspension of sentence with probation conditions,probation officers will make an arrangement with the offender to fulfill the court order. The arrangement
is based largely on the outcome of risk and need assessment of each offender. The conditions could be
modified or reduced or the probation may be terminated early before the specified date. Probation officers
will comment on this when reporting the progress of probation. Additionally, the probation and supervision
plan will be reassessed every three to six months. The supervision is also to give offenders an opportunity

179

RESOURCE MATERIAL SERIES No.79

to compensate for the harm done by the crime they commit, and to be encouraged to stop reoffending.
3. Specific Rehabilitation Programmes
Concerning treatment programmes, the Department of Probation has initiated a wide range of
rehabilitative interventions and activities. The strength of our rehabilitation is the way in which probation
rehabilitative practices are integrated with local resources and work in partnership with other government
and non-government agencies. Various constructive programmes have been implemented. Explicit examples
include ‘Buddhist Ordination’, ‘Dharma activities’ (religious training), ‘Ethical Camps’, ‘Anti Drink-Driving
Campaign’, etc.
In attempting to create innovative rehabilitation programmes, the department encourages probation
officers to work jointly with multi-agencies, volunteer probation officers (VPO), psychologists, social
workers, social welfare officers, religious organizations (Buddhist, Islamic, Christian), etc. Moreover, thedepartment also works closely with the Victims of Drunk Driving Club whose members are seriouslyinjured or handicapped victims of drunk-drivers.
4. Basic Assistance
Probation officers are to provide basic assistance for all offenders - the offender under social
investigation, adult probationers, juvenile delinquents, parolees, and ex-probationers, including ex-prisoners.
Basic assistance will be provided in accordance with the result of need assessment.
Basic assistance is generally to do with vocational training, helping with higher education, job finding,job application, and other matters beneficial for rehabilitation. This is for the offenders to be able to support
themselves and manage to integrate back into society.

B. Probation of Youth Offenders
The probation of juvenile delinquents in Thailand is the responsibility of two agencies: the Departmentof Juvenile Observation and Protection and the Department of Probation. The Department of Juvenile
Observation and Protection deals with the social investigation of young offenders and oversees those in
the delinquent detention centres. The Department of Probation supervises young offenders subject toprobation orders imposed by the courts and those released from detention centres nationwide for a specificperiod of time. Since 2004, the Department of Probation has run the Juvenile Rehabilitation Program which
incorporates a number of related projects aimed at strengthening co-operation with community civil society
organizations, empowering the family and the community, and capacity building for the probation officers
in their work for the children. To provide a venue for counselling and for creative activities by the children
within the community, a number of community centres for juveniles have been established to serve as aforum for co-ordinating help and support for the children in the community as well as for introduction of
useful programmes and activities for the children in the community.
C. Probation of Parolees
After serving one third or at least 10 years of an imprisonment period, inmates may be given a parole orremission order. Also, those who have been serving a sentence of life imprisonment are eligible for early
release if the Parole Board so agrees. Before the decision is made, probation officers will propose a postsentence investigation report to the Parole Board. A report consists of relevant information about the inmate
and his/her behaviour during the imprisonment and details of supporters. Probation officers may also include
in the report the views of the victim, the offender’s neighbours, and the community leaders.
The supervision of parolees has its own purpose, and practices principles similar to the supervision of
adult probationers. However, what makes it different is the way in which parolees are approached, and theprogramme requirements. This is partly due to the fact that they have been in custodial institutes for sometime, and certain inmates find it rather difficult to adapt back into their community and even their own family.

D. The Compulsory Rehabilitation of Drug Addicts: A Major Scheme to reduce Overcrowding in
ThailandSince 2002 the Thai government has adopted a new policy to tackle narcotic drug problems. The newemphasis is on the enhancement of preventive measures. Under the policy, drug users and drug addicts, whopreviously had been prosecuted as criminal offenders, are to be regarded as patients who need rehabilitation
180

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

treatment. In 2002, the law on Drug Rehabilitation was revised to provide a new legal framework for the
integrated treatment of drug-related offenders in Thailand. Under the new scheme, all related government
agencies have to work closely together to provide integrated responses to the treatment of drug offenders.
These agencies include the Office of the Narcotic Control Board, the Royal Thai Police, the Department ofCorrections, the Department of Juvenile Observation and Protection, the Courts of Justice, the Royal Thai
Army, the Royal Thai Navy, the Royal Thai Air Force, the Ministry of Public Health, the Ministry of Interior,and the Bangkok Metropolitan Administration, with the Department of Probation serving as the focal point.
The Drug Rehabilitation Act 2002 can be regarded as a revolutionary piece of Thai legislation. The
2002 Act makes clear that drug addicts are not ‘criminals’, but ‘patients’ who are in need of effective
treatment. The enforcement of the Act undeniably contributes to thousands of drug cases being diverted
from courts, and shifting the public view of drug dependents in Thailand. After assuming the responsibility,
the Department of Probation did not hesitate to take a more holistic approach by introducing various drug
rehabilitation programmes to assist drug addicts in rebuilding a new life. The number of drug addicts who
have been treated under the scheme from 2003 to present is shown in Figure 5.
Figure 5. Number of participants in compulsory rehabilitation programmes from 2003 - 2008
100000

85492

80000
60000
42659

40000
20000
0

participants inrehabilitation
programmes

48895

31792
18271
6503
2003

2004

2005

2006

2007

2008

The 2002 Drug Rehabilitation Act stipulates that the person charged with “drug addiction”, “drug addiction
and possession”, “drug addiction and possession for disposal”, or “drug addiction and disposal,” if the amount of
possession is less than the limitation of the law, is to be transferred to the court within 48 hours, and in the caseof young persons 24 hours. The court then will be able to divert the case from the traditional criminal justicesystem and refer the person to designated facilities for drug assessment. The evaluation will be conducted by
the regional Sub-committee of Narcotic Addict Rehabilitation, chaired by the chief provincial public prosecutors,
who will make a decision on whether the person is a drug addict. Apart from this, the committee is given
statutory power to supervise drug abusers/addicts during the assessment and rehabilitation, refer the person
to drug rehabilitation centres, consider the extension or reduction of the rehabilitation period, and grant
temporary release during detention. If the evaluation result shows that the person is a drug abuser/addict, he or
she will be required to attend treatment programmes for a specific period of time.
If he or she is assessed as being addicted, the prosecutor will suspend the prosecution and the person has
to undergo one of the two compulsory systems: the “custodial” or “non-custodial” rehabilitation programme.

E. Custodial Rehabilitation
There are two types of custody options available for the participants of the rehabilitation programmes,
depending on the needs to limit freedom of each participant: the full custody arrangement, and the partial
custody arrangement. In either case, the first four months into the rehabilitation scheme are dedicatedto the intensive medical treatment of each drug addict. The difference is the differing degree of custodyduring that period. At present, there are two designated facilities that are equipped to run rehabilitation
programmes under full custody treatment: the Lat Lum Kaeo Community Treatment Center in Pathum
Thani province, and the Jirasa Air Force Base Center operated by the Royal Air Force. In case of partial
custody requirements, the four-month rehabilitation programmes are based on the integration of four key

181

RESOURCE MATERIAL SERIES No.79

components, namely: family, alternative treatment activities, self-help, and therapeutic community, or FAST
MODEL, and are available at facilities under various government agencies, including military camps, naval
camps, and the medical treatment centres of the Ministry of Public Health. In case of partial custody, there ismore variety depending on the emphasis and available resources of the participating agencies.
Upon completing the intensive rehabilitation programme, each participant will be released and allowed
to live within his or her community under probation for another two months. The Department of Probationis the central agency overseeing this process where emphasis is placed on preparing each participant for
reintegration into society. After completing probation, the participants will be periodically monitored by thevolunteer probation officers or the volunteer public health officers for another 12 months to evaluate if they aresuccessfully rehabilitated. Successful participants on the scheme are then exempt from criminal prosecution.

F. Non-Custodial Rehabilitation
In the case where no custody is required during the intensive treatment, participants who are diagnosed
as addicts may or may not be admitted as patients at hospitals or other rehabilitation centres, to receive
the appropriate treatment. This step lasts from four to six months. In the case where the participants are
deemed merely drug users, they will receive treatment provided by the Department of Probation for six
months. The remaining two-month probation period and the one-year monitoring period are implemented in
the same way as the scheme for rehabilitation under custody.
In addition to the implementation of the rehabilitation scheme, the Department of Probation has
also come up with a number of initiatives to assist drug-related offenders in their effort to successfully
reintegrate, such as the following:
1. Basic Educational Support
The idea is to provide the drug addicts who undergo the rehabilitation programme with the opportunity
to receive basic education. The programme is run by the Department of Probation in collaboration with
the Ministry of Education, where special curricula equivalent to that of the regular elementary or primaryschools are provided to each participant depending on his or her needs. It is hoped that by fulfilling the
educational gap for these drug-related offenders, they will be in better shape for future employment in thereal world or to pursue higher education of their choice upon the completion of the programme.
2. Enhancement of Family Support
The initiative involves educating family members of drug addicts on how to support the rehabilitation
effort, and counselling services for family members as well as the participants of the rehabilitation
programme. The rationale for this initiative is that the rehabilitation will be effective only when it extends
to cover all stakeholders and that therefore family members of each drug addict can play significant
roles. In order to ensure the smooth and happy reintegration of offenders back into society, support andunderstanding on the part of his or her family is deemed indispensable.
The initiative has proved very effective in equipping both the rehabilitants and their families with
understanding of the importance of the community-therapy, the fostering of bonds among family members,
and the importance of having the right mindsets in dealing and supporting the rehabilitation of the offenders.
It was found the participants whose family members also took part in the initiative had a higher rate ofsuccessful rehabilitation.
3. Buddhist Teaching for Drug Addicts
This initiative aims at applying relevant Buddhist principles and guidelines to help the drug addicts indeveloping their mental strength to rehabilitate. The Department of Probation has been able to gain support
from three Buddhist temples willing to provide a pilot programme under the initiative.

G. Restorative Justice Interventions
In Thailand, there are several criminal justice agencies implementing restorative justice interventions.
To begin with, the Department of Juvenile Observation and Protection has been implementing a restorative
justice conference since 2003. It is taken in form of a ‘Family and Community Group Conference’ (FCGC),
conducted in the pre-trial stage as a channel of diversion. From the beginning of the programme in June 2003

182

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

to February 2008, there were 21,490 cases where an FCGC was conducted, of which 18,128 cases wereapproved for non-prosecution by public prosecutors. In addition, the Department of Probation also has also
initiated programmes on restorative justice intervention since 2003. The programme is known as ‘RestoreRelationship Conferencing’, conducted at the pre-sentence/social investigation stage. Due partly to thelegislative limitation, the initiative does not place an emphasis on diversion. Rather, the outcome of restorative
justice conferences proves beneficial for judges in giving appropriate sentences. This is particularly whenjudges examine the extent to which offenders feel guilty and if any reparation is made for the committed crime.
Restorative justice has begun to gain wider acceptance in Thailand. Recently, the Criminal Court has
also initiated a pilot project on criminal mediation based on restorative justice principles. Draft legislation
on diversion of small criminal cases at the police and prosecutors stages have also been proposed forconsideration by the parliament.
1. Restorative Justice in Response to Domestic Violence
In recent years, domestic violence (DV) has been recognized as another serious issue that threatens
the stability of the family in Thai society. The traditional view is that domestic violence is a private matterand it is inappropriate for outsiders to interfere. This has resulted in the situation where domestic violence
tends to be closely related to violence against women, since the female counterparts, who are normally thevictims, are reluctant to bring the matter to the authorities. This has in some cases resulted in repeatedincidents of DV by the male partners.
The Department of Probation, in co-operation with the Royal Thai Police, the Rama Hospital, theBangkok Metropolitan Administration, the Women Empowerment Association, (an NGO which provides
emergency shelters for female victims of violence), and the Friends of Women Foundation, has designed an
integrated DV response system where the concept of restorative justice is used in conjunction with the law
enforcement and rehabilitation programmes organized by the interdisciplinary professional organizations
to provide assistance to the victims of such violence, and to the offenders in their effort to change their
behaviour and stop using violence.
The restorative justice concepts have proven effective in providing a suitable ground for resolving
disputes within the family in a way that tries to maintain the relationships among the family members.
In bringing the parties in conflict to dialogue and trying to reach an agreement, emphasis is placed on
responding to the needs of the victims as well as holding the offenders accountable. Restorative justice has
therefore provided an effective alternative to the formal criminal justice process in response to DV.
When violence occurs between a married couple, the partner who has been the victim of violence can
exercise his or her right to bring a criminal case against the offender by first reporting it to the police. Underthe restorative justice initiative, he or she can request that a dialogue with the partner be arranged withmediation by a probation officer, a psychologist, or a social welfare worker. If the two sides can reach an
agreement, the charge against the offender will be suspended on the condition that he or she participatesin a rehabilitation programme under the supervision of the probation officer for an agreed upon periodof time. During that period, the participants will be able to receive various kinds of assistance from the
Department of Probation, including legal aid counselling, occupational training, and accommodation support.
If the participant has been well behaved and not violent, the charge will be completely dropped. Within theprescription period of the offence, if the attempt proves unsuccessful, the victim can at all times request thatthe prosecution against the partner will be resumed.

H. Aftercare Services
Certain offenders under probation are considered socially disadvantaged and they have also lost theirpotential to abide the rule of law. Aftercare services aim to regain their reformative potential and selfimprovement. These are available for ex-probationers who have completed the probation term within one year.
For aftercare services, Department of Probation has applied the use of ‘halfway house’ to help offenders
in need of accommodation. Halfway houses are there to help them adjust and be prepared to get back to theirfamily/community. As a temporary accommodation, there are a variety of routine activities and programmes
in the halfway houses including occupational training, spiritual counselling, and various skill development

183

RESOURCE MATERIAL SERIES No.79

programmes. In running the temporary residences, Department of Probation attempts to integrate various
sciences, local and traditional know-how, traditions, cultures, and religions, altogether. Thus the halfway
house can be considered as a boundless work among the probation departments, religious institutes, and thecommunity at large.
At present, there are several halfway houses operated by the Department, which are located in provinces suchas Nakhon Sawan, Amnat Charoen, Maha Sarakham, Kamphaeng Phet, and Phatthalung, providing services for
not only offenders under probation orders, but also drug addicts under the diversion initiative. Various activities
are offered, including Buddhist therapy, drug rehabilitation programmes, and supervised community service.
While new initiatives are considerably more diverse and group-specific, to implement such treatment
programmes effectively on a large scale requires enormous resources which is far beyond the normal
capacity of any government agency. Therefore, recruitment of volunteers and active participation by thecommunity itself are of great importance as they provide sustainable resources for implementing thecommunity-based correctional programmes. It is also important to empower each community to develop its
own mechanism of crime prevention by means of knowledge sharing. Some of the ongoing initiatives aimed
at community empowerment are the topics of the next section.

V. INITIATIVES TO PROMOTE COMMUNITY-BASED TREATMENTS
A. Community Participation: A Key to Success
The Department of Probation recognizes the importance of community networks as valuable communitybased resources for sustainable correctional programmes. It is important to empower each community todevelop its own mechanism of crime prevention. Therefore, the Department has emphasized equipping
the communities with knowledge before engaging them in taking an active role in crime prevention
and community-based rehabilitation of offenders. Some of the ongoing initiatives aimed at community
empowerment are the following:
1. Volunteer Probation Officers Programme
The initiative to allow community members to actively take part in probation service has been inplace since 1986. From the beginning, the volunteer probation officers have had an integral role in theprobation system since they provide a linkage between the State and the general public. They also serve
as multiplying factors in the attempt by the Department of Probation to reach out to the community, either
through various schemes to disseminate information, to educate people, or to sensitize the public to various
issues, including certain types of criminal offences. One of these important roles is to provide effective
monitoring for the offenders who are serving the probation orders within the community to ensure theirconduct is in accordance with the conditions set by the court.
In performing such duties, these volunteers are also responsible for providing help to, and assessing the
progress made by these offenders – an indispensable element of a successful probation system. Thus, thevolunteer probation officers make an invaluable contribution to foster effective reintegration of the offenders
back into society, in particular through their roles in narrowing the gaps that exist between the life of
offenders and that of normal citizens, and helping offenders to overcome the alienation they feel upon theirreturn to society.
The following list comprises the basic qualification requirements for those interested in joining as avolunteer. Candidates must:
1.
2.
3.
4.
5.
6.
7.
8.

184

Be at least 20 years of age;Live in a permanent residence;
Be literate;
Be a person of integrity and honesty;
Have suitable income;Maintain law-abiding behaviour;
Have completed required training courses as provided by the Ministry of Justice;
Have no criminal record except for petty offences or negligence.

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

As of 30 September 2008, there are about 9,430 volunteers currently registered throughout the nation. In
2008, the number of offenders under the supervision of volunteer probation officers who have successfullycompleted the probation programmes without reoffending is as high as 98.9 percent, supporting the claimthat volunteer probation staff have become a vital contributing factor in the success of the reintegration
scheme by Thailand’s probation system.
To encourage community of practice among the volunteer probation staff, an Association for Volunteer
Probation Officers has been established under the support of the Ministry of Justice to provide assistance tovolunteer probation officers as well as to foster networking and sharing of information among the volunteers.
2. Community Justice Networks
Starting from 2003 as a pilot project, the initiative has been the first attempt by the Department of
Probation to put the theory of community justice into practise. This kind of network developed because theDepartment of Probation felt the need to have a broader base of community support to be able to cope withmuch more demanding responsibilities, especially in the rehabilitation of drug addicts. Through the conceptof ‘community justice’ where the community can work in ‘partnership’ with the government, it was hopedthat the community could join hands to help during rehabilitation and reintegration of drug addicts into
society. The pilot project proved successful and the idea of working in ‘partnership’ with the community has
been expanded to other areas beyond drug rehabilitation.
In rural Thailand, the concept of people in the community joining hands with the authorities in law
enforcement and providing justice has long been a tradition. This tradition was neglected once the modern
criminal justice agencies were established. The pilot project initiated by the Department of Probation has
been successful in utilizing this hidden strength of the community. It was found that through the unity andbonding between members in the community, it was possible to bring about positive outcomes in termsof helping and caring for the needy in society. By empowering the community to be more active and get
involved in day-to-day justice activities, community resources and social capital can be fully utilized toachieve the end result.
In other words, the community justice network is an important initiative by the Department of Probation
with an aim of strengthening public participation in the field of criminal justice by creating a network of civilsociety groups within the community to work closely with the government. Key activities include training
for probation officers so they can develop the necessary skills to work with or within the community topromote community justice; educating the general public so that they are aware of the roles and functionsof various agencies within the criminal justice system, the importance of surveillance in crime prevention,
how to file complaints, how to protect their rights and liberties guaranteed by the law; alternative dispute
resolution including mediation; as well as various approaches - such as community workshops - for thecommunity-based treatment of offenders.
Under the initiative, a community justice centre is established within the community where themembers are recruited from the general public as volunteers. These volunteers will receive training fromthe Department before they get together to commence their functions, such as hearing complaints andorganizing meetings to deal with disputes. Community justice newsletters and other periodicals, combinedwith frequent exchange of site visits, are used to strengthen and maintain the close relationship between the
networks and the Ministry of Justice. From 2005 to present, community justice networks have grown into alarge network of 56,433 volunteers who can join their efforts through various activities organized around the530 community justice centres all over the country.

B. Making Probation Work More Visible
1. Drink-Don’t-Drive Campaign
The Drink-Don’t-Drive Campaign is one of the most popular nationwide campaigns aimed at reducing
the numbers of deaths and injuries caused by road accidents during long vacations such as the New Year andSongkarn (Thai traditional New Year) holidays. During such holidays, a large number of people may returnhome or travel. According to statistics, during the five to seven days of the Songkarn holidays of 20022004 there were more than 35,000 injuries and around 550-650 deaths as result of road accidents. Statistics
showed that around 35 percent of the accidents were caused by drunk driving. Although drunk driving in

185

RESOURCE MATERIAL SERIES No.79

Thailand is a criminal offence punishable by up to six months’ imprisonment, in reality, where there is no
major injury involved, the drivers would normally receive only a fine. Such light punishment does not deter
drivers from repeating the offence.
In 2005, the Department of Probation joined the campaign. It has successfully persuaded the courts to
put drunk drivers on probation. In this initiative, drunk drivers were given suspended sentences and put on
probation with the requirement that they perform community service. The Department of Probation selects
community service activities designed to sensitize drunk drivers to the kinds of injuries they might cause
themselves or others. They include assisting victims of car accidents, working in hospitals, volunteering forroad accident emergency rescue units, and campaigning against drunk driving during the New Year holidays
and Songkarn Festival.
The initiative combines a specific type of community service with public education in co-operation witha network of civil society organizations to create an effective campaign against drunk driving in Thailand.
The Department of Probation works closely with the Thai Health Promotion Foundation, the Drink-Don’tDrive Foundation, the Department of Disaster Prevention and Mitigation, the Road Accidents Prevention
Network, and the Traffic Police Head Quarters, to educate drivers, the general public, and the mass media,
and sensitize them to the damage caused by traffic accidents, including the criminal offence of drunk driving.
The campaign also aims at instilling a sense of social responsibility among drivers.
The Drink-Don’t Drive campaign, with the message “Drunk drivers will not only be fined but will also
be put on PROBATION” was one of the most successful campaigns. The campaign received wide media
coverage: news of the campaign was on the front pages of every newspaper and on primetime TV across all
stations. As a result of working hard to get the campaign’s message to the public, a poll conducted in 2006
by Assumption University in Bangkok found that 91 percent of those polled agreed with the idea that drunk
drivers should receive community service orders. When asked whether they had heard of the Department of
Probation, once the least known organization in the criminal justice system, 83 percent of the respondents
said yes, a steep rise from the 48 percent in a 2000 survey.

VI. KEY CHALLENGES AND WAYS FORWARD FORCOMMUNITY-BASED TREATMENT IN THAILAND
In order for community-based treatment to serve as an alternative for the treatment of offenders, it isimportant that well-focused criminal justice policy regarding the non-custodial treatment and reintegrationof offenders across the criminal justice process is in place. It is also highly desirable that all stakeholders andresponsible government agencies, especially the Department of Probation, continue their efforts to improveand enhance the capacity of their staff. This entails providing the staff with training and opportunity toacquire and develop new skills to cope with their expanding responsibilities; improving work conditions; andenhancing the overall efficiency of the work system. This is particularly important when one considers thefact that there will always be a certain degree of constraint at the high policy level to reduce the size of thebureaucratic system, making it very difficult for the public agencies to employ additional staff to match theincreased workload.
It can be said that the community-based approach has begun to take root in the criminal justice system,
and Thai society. Yet, for this new alternative approach to survive and attain more maturity, a number of key
challenges will have to be adequately dealt with. Here are some of the challenges and ways forward.

A. Explosive Growth in Scope of Work
Figure 4 shows the number of cases that fall under the responsibility of the probation officers, while
Figure 5 traces the number of probationers entering the system during the past 30 years. Here theexplosive growth in responsibility of probation staff in recent years is clearly visible.
The increase is not only in the quantity of work, but also the variety of missions. New laws that havebeen in force in recent years have paved the way for the expanded scope of probation work from thetraditional intensive probation based on investigation and supervision of offenders, to the new frontier where
probation work becomes an essential instrument for diversion and crime prevention. The introduction of186THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

innovative techniques, such as electronic monitoring for treatment of offenders in the community, has also
led to a significant increase in the workload of probation officers. The expanded scope of work has had aconsiderable impact on the probation staff already stressed by chronic under-staffing. So far, the Departmentof Probation has introduced numerous measures to improve the working system, including the introductionof information technology and innovative approaches with an aim to enhance the efficiency of work. Still,
all this will not be enough to effectively address the overwhelming problem of workload increases and its
impact on the morale of the staff, unless the government takes this issue seriously and comes up with asystematic way to provide sufficient support. What is needed is sufficient funding and support to cope withthe expanded scope of work with the guarantee that the quality of the probation programme will not suffer.

B. Need for Enhanced Visibility
Probation work, where most of the activities take place within the community, tends to be less visible in theeyes of the general public compared to institutional treatment. One serious implication for this relatively low
visibility is the difficulty in trying to convince the decision makers, who might not be able to see the tangible
results of probation work, to provide essential support both in terms of policy advocacy and financial support.
Thus, in order to gain the understanding and appreciation of the general public, the Department of
Probation will have to make more strategic efforts to ensure as clear and concrete as possible outcomes tothe probation programmes. So far, the Department has been successful in raising the visibility of probation
treatment for drunk-drivers. The campaign was successful in sending out a clear message to the public that
community services, such as working in hospital or providing care for victims of drunk-driving accidents,
are more effective as a means to help the offenders to reconsider the impact of their action and refrain fromrepeating it, and thus a more effective enforcement of the law against drunk driving. The Court was also
convinced to make more use of community service orders as alternatives to fines. More needs to be done toincrease the visibility of probation work with respect to more types of offences.

C. More Effective Treatment Programmes
In order for the community-based treatment of offenders to become a viable alternative to incarceration
there is urgent need for the Department of Probation to come up with effective programmes of treatment
to ensure rehabilitation of offenders and reduction of reoffending. This requires a good system of risk
assessment that allows probation and parole officers to effectively distinguish between the high and low risk
groups of offenders and apply appropriate rehabilitation programmes that take into account public protection.
In this connection, the Department of Probation should put more emphasis on designing effective offending
behaviour programmes that enhance thinking or cognitive skills of offenders. There should also be morevariety of programmes which should respond to the specific needs of each particular group of offenders,such as anger management, domestic abuse, sex offenders’ programmes, etc. As most of the social issues
and causes of crime become more and more complicated, there is a constant need for probation staff toimprove their efficiency and to acquire new knowledge and skills so that they can cope better with moresophisticated demands when supervising and providing assistance to offenders that effectively addresses
their problems at the fundamental level.
In the early days, especially when the Department of Probation was under the direct control of the
judiciary, the main responsibility of probation officers was to prepare the so-called social inquiry reports forjudges to use as pre-sentencing information. There was less emphasis on turning probation programmes
into an effective alternative to the prevalent forms of punishment. So far, the Department of Probation has
been successful in developing programmes specific to the treatment of drug addicts as well as drunk driving
offenders. More customized treatments will be necessary for quality probation programmes of the future.

D. More Focus on Reintegration
At the heart of any quality treatment is the ultimate goal of reintegration of offenders into society.
Measures must be tested and monitored for their effectiveness in terms of providing assistance to offenders
so they can attain such a goal. With the reform of 2002, the task of ensuring smooth reintegration of
offenders, under both parole and probation, is the responsibility of the Department of Probation. In reality,
it is difficult for these socially disadvantaged groups to start a new life without further assistance withreintegration. It is thus important that more attention should be paid to aftercare services which will enableoffenders to regain their reformative potential and self-improvement. In this connection, the Department

187

RESOURCE MATERIAL SERIES No.79

of Probation has recently applied the use of ‘halfway houses’ to help offenders in need of accommodation.
Halfway houses are there to help them adjust and be prepared to get back to their families and communities.
As a temporary accommodation, there are a variety of routine activities and programmes in the halfway
houses, including occupational training, spiritual counselling, and various skill development programmes.
In running the temporary residences, the Department of Probation attempts to integrate various sciences,local and traditional know-how, traditions, cultures, and religions altogether. Thus the halfway house canbe considered a boundless work among the probation departments, religious institutes, and the community
at large. Currently there are several halfway houses operated by the Department which are located inprovinces such as Nakhon Sawan, Amnat Charoen, Maha Sarakham, Kamphaeng Phet, and Phatthalung,providing services for not only offenders under probation orders, but also drug addicts under diversion
initiatives. It is important that the Department of Probation continues with this important initiative and puts
greater effort into involving all stakeholders, including the community, in this significant mission.

E. More Embrace of Innovations
In many cases, innovative approaches to the treatment of offenders can prove very effective. Currently,
Thailand is exploring a number of intermediate sanctions, including intensive probation, home detention,
weekend detention, periodic detention or curfew, and electronic monitoring. If such a variety of innovative
options are available, it is more viable to extend the use of alternatives to incarceration, such as probation, toa higher risk group of offenders. Additional innovative approaches might include pre-sentencing probation,
assistance programmes for victims of crime, and the implementation of restorative justice measures. In thisconnection, it is necessary that there are amendments to the existing legal framework to incorporate these
new sentencing options.
In response to the need to systematically embrace more innovative approaches, some might look forthe establishment of a new agency to be responsible for the new demand. Still, in my opinion, it might bemore productive to consider assigning such new missions to the Department of Probation, consideringthat its staff have had considerable real work experience and are equipped with the necessary fundamental
knowledge and skills. Each probation officer, provided that they are properly trained, will have at least
three significant qualifications, namely: 1) being knowledgeable with respect to law and the criminal justicesystem; 2) having good background knowledge of psychology and social welfare; and 3) having intensive
work experience with all key stakeholders in the criminal justice process - police, public prosecutors,
offenders, victims, or the members of the local community. Therefore, we only need to build more on thewell-laid foundations.

F. More Partnership and Networking
The Department of Probation’s success in promoting public participation in the criminal justice processof Thailand has inspired decision-makers at the top policy levels to apply this model of volunteers andcommunity justice networks to address other key criminal justice issues, especially to develop a communitybased system of responses focusing on alternative dispute resolution and access to legal assistance. So
far, the volunteer probation officers’ initiative, as well as the prototyped networking initiatives by the
Department of Probation, has had great success in mobilizing public support for and understanding of thework of offender treatment, which results in more effective implementation of treatment programmes andafter-release assistance programmes within the community. My experience in working to promote public
participation in the treatment of offenders has confirmed the fundamental belief that direct engagementof the community members, either through the form of volunteer probation officers or a broader-based
criminal justice network, is indispensable for the effective implementation of alternative treatments. It
is the most efficient way to make use of resources within the local community, and other forms of social
capital, to support probation work, as well as other functions relating to law and justice. In the context ofThailand’s political system, direct participation from the local community also contributes to on-going efforts
with respect to decentralization of administrative power from the central government, as mandated by theConstitution. As present, there are over 6,700 Tambon Administration Organizations, the smallest units oflocal government, throughout Thailand, with increasing independence in terms of policy planning and budget
management. The success in promoting community involvement in the treatment of offenders should be
expanded to include the form of partnership agreements with these local administrations, which, in myopinion, will provide a more sustainable solution to the chronic problems of budget constraints and lack ofsupport for assistance programmes for the reintegration of offenders into society.

188THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

VII. CONCLUSION
Community-based treatment in Thailand has come a long way since it was first introduced 30 years
ago as an alternative to custodial treatment for adult offenders. It has become a well-accepted option
for diversion of criminal cases from mainstream treatment programmes based on incarceration. There
have been a number of new measures for specific groups of offenders to better serve their needs. Public
participation and community engagement have become an integral part of a system where rehabilitation andreintegration are the ultimate goals. Some innovative measures, such as restorative justice with an emphasis
on a role for the victim, have become increasingly popular. Finally, the working style where community
networking and partnership are absolute ingredients of programmes has become the norm. All these aregood signs for the sustainable development of the community-based approach.
Since its inception 30 years ago, now is perhaps the most crucial time for community-based treatment
measures in Thailand. With stronger support at the policy-making level, and with more importanttasks at hand, it is important that the Department of Probation, which shoulders the responsibilities of
implementing community-based measures, puts great effort into monitoring and evaluating the outcome ofsuch programmes, while maintaining the quality of work, despite rising demands. Through decades of hard
work, the Department of Probation has been successful in introducing and firmly establishing the systemof community-based treatment of offenders in Thailand. However, if these community-based alternatives toincarceration are to be more widely accepted and utilized, it is necessary that full support be urgently given
to the Department of Probation. Viewed as a cheaper alternative, community-based treatment measures inmany countries, including Thailand, are facing the same problems of chronic lack of funding and inadequate
personnel resources. Although community-based options may in fact be a cheaper alternative, this does
not mean that they can survive without adequate funding and support. To ensure successful results, it isnecessary that due consideration be given to providing full support to probation work during this important
period for continuing growth and maturity.

189

COMMUNITY-BASED ALTERNATIVES TO INCARCERATION
Christine Glenn*

I. INTRODUCTION
This paper will concentrate in the main on community-based penalties but the account would beincomplete without the broader picture of sentencing and penal policy across the justice system in Englandand Wales.

II. GOVERNMENT POLICY
Government policy is that prison should be reserved for serious and dangerous offenders, and that others
are normally better punished in the community. To this end, the Ministry of Justice has been working withthe courts and others to try to bring down the prison population, which is at record high levels.

III. PURPOSES OF SENTENCING
Our whole sentencing framework was rewritten in the Criminal Justice Act 2003. For the first time, there
was a statutory definition of the purposes of sentencing. These are (as set out in section 142 of that Act):
•
•
•
•
•

The punishment of offenders;
The reduction of crime (including its reduction by deterrence);
The reform and rehabilitation of offenders;
The protection of the public and;The making of reparation by offenders to persons affected by their offences.

This definition does not apply to offenders under 18 at the time of sentencing and certain categories
of sentences for the mentally ill. Other than those few categories, the purposes of sentencing are now sodefined.

IV. SERIOUSNESS OF THE OFFENCE
Whilst courts are obliged to have regard to these principles, sentences will generally be determinedaccording to the seriousness of the offence. Seriousness is made up of:••harm caused by the offence; andculpability of the offender in committing it.

There is also a presumption that recent and relevant previous convictions make an offence more serious.
There are thresholds of penalty based on seriousness:••

offences that are so serious that only custody will represent a sufficient response;
offences that are serious enough to warrant a community sentence.

If neither of these thresholds is reached then a fine or a discharge will be appropriate.

* Chief Executive, Parole Board of England and Wales.

190

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

V. COURT JURISDICTION
There are three types of offences:•••summary, which may only be tried in the magistrates’ courts;
indictable, often known as “either way”, which may be tried in either the magistrates’ courts or the
Crown Court; andindictable only, which may only be tried in the Crown Court.

Penalty levels vary depending on the court trying the offence. The magistrates’ courts may not impose
more than six months’ imprisonment for a single offence nor generally fine more than £5,000.

VI. FINES
Fines are available to punish all offences (other than where mandatory minimum sentences apply, such as
for murder). In general, the maximum fine that can be imposed by a magistrates’ court is defined in terms oflevel. There are five levels, currently set as follows:
•
•
•
•
•

Level 1
Level 2
Level 3
Level 4
Level 5£200
£500
£1,000£2,500£5,000In practice, fine levels are generally much less than the maximum as courts must take account ofoffenders’ means when deciding on the amount to impose. The Crown Court may fine an unlimited amount.

VII. COMMUNITY SENTENCES
Since the implementation of the Criminal Justice Act 2003, there has been a single community orderfor offenders aged 18 or over that can comprise up to 12 requirements depending on the offence and theoffender. These are:
•
•
•
•
•
•
•
•
•
•
•
•

unpaid work (formerly community service/community punishment) – a requirement to complete
between 40 and 300 hours’ unpaid work;
activity – e.g. to attend basic skills classes;
programme – there are several designed to reduce the prospects of reoffending;prohibited activity – requirement not do so something that is likely to lead to further offences ornuisance;
curfew – electronically monitored;
exclusion – not much used as no reliable electronic monitoring yet available;
residence – requirement to reside only where approved by probation officer;
mental health treatment (requires offender’s consent);
drug rehabilitation (requires offender’s consent);
alcohol treatment (requires offender’s consent);
supervision – meetings with probation officer to address needs/offending behaviour;
attendance centre – three hours of activity, usually on Saturday afternoons, between a minimum of
12 hours and a maximum of 36 in total.

Typically, the more serious the offence and the more extensive the offender’s needs, the more
requirements there will be. Most orders will comprise one or two requirements but there are packages ofseveral available where required. The court tailors the order as appropriate and is guided by the probation
service through a pre-sentence report.

VIII. BREACH
Offenders who commit more that one unacceptable failure to comply with the terms of a community
order within a 12 month period are returned to court. If the breach is proven, the court is obliged to make191

RESOURCE MATERIAL SERIES No.79

the order more punitive, or it may re-sentence, including to custody.

IX. CUSTODY
The picture on custody is complicated as there are different sentences for 18 to 21 year olds and for older
adults; and depending on whether sentence is under the Criminal Justice Act 2003 or its predecessor, theCriminal Justice Act 1991.
Eighteen to 21 year olds are sentenced to detention in a young offender institution and older adults to
imprisonment but to all intents and purposes here, they can be considered to be the same thing.
Maximum penalties are specified for all offences according to the seriousness of the offence. Generally,
the maximum will fall into one of the following bands:
•
•
•
•
•
•
•
•
•
•

1 month
3 months
6 months
12 months
2 years
5 years
7 years
10 years
14 yearslife.

One of the characteristics of the criminal law in England and Wales is that offences are defined verybroadly. Robbery, for example, can be the snatching of a bar of chocolate from one schoolboy by another or amulti-million pound gold bullion heist. Hence penalties tend to cluster much lower than the maxima.

X. SHORT SENTENCES – UNDER 12 MONTHS
Those sentenced to under 12 months (still made under the Criminal Justice Act 1991) spend the firsthalf of their sentence in prison and are then “at risk” for the remaining period. This means they are underno positive obligations and do not report to the probation service but, if they commit a further imprisonableoffence during the at risk period, they can be made to serve the remainder of the sentence in addition to thepunishment for the new offence. The exception to this is those aged 18 to 21 who have a minimum of threemonths’ supervision on release.

XI. CUSTODY PLUS
The Criminal Justice Act 2003 sought to replace short sentences with custody plus, a new sentencethat would comprise a short period (2 to 13 weeks) in custody followed by a period under supervision in
the community (similar to a community order). This was because the recidivism rate for short sentences
is particularly high and one of the reasons for that is because offenders receive no supervision or support
on release. Resource constraints have prevented the introduction of this sentence, which remains on thestatute book.

XII. SUSPENDED SENTENCE ORDERS
The government has implemented suspended sentence orders, which enable a court to suspend
a sentence of up to six months for a period of up to two years subject to the successful completion ofrequirements in the community. The courts have used this substantially – we think to up-tariff from
community sentences. As breach of a suspended sentence order leads very often to custody, this is having
an unfortunate effect on the prison population. The government tried to legislate in the Criminal Justiceand Immigration Bill to restrict the use of the order to indictable (including either way) offences but had togive up on account of lack of time for the parliamentary process. They will probably return to this in future
legislation.

192

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

XIII. SENTENCES OF 12 MONTHS OR OVER
A. Criminal Justice Act 1991
The provisions of the 1991 Act for sentences of more than 12 months have been replaced by those of
the 2003 Act but there are still some prisoners sentenced under the 1991 Act who are working their way
through the system.
The 1991 Act created a distinction between short-term – those serving under four years – and long-term– those serving sentences of four years or over – prisoners.
Short-term prisoners are those serving between one and four years and spend the first half of theirsentence in prison; the third quarter on licence and the final quarter at risk.
Long-term prisoners serving determinate sentences spend the first half of their sentence in prison andthen may apply for parole to the independent Parole Board. Parole may be granted at any time between
the half-way point and the two-thirds point of the sentence, and will only be granted if the Parole Board
considers that the offender is a sufficiently safe bet to release. The test is that the prisoner will not commit
a further offence of any kind within the parole window. The offender is on licence from the point at which
he is released until the three quarter point of sentence and then at risk for the final quarter. In the Criminal
Justice and Immigration Act 2008, the government legislated to treat long-term prisoners (as defined by the
1991 Act) who have been convicted for non-sexual non-violent offences as if they were standard determinate
sentence 2003 Act prisoners. These provisions commenced on 9 June 2008 and apply only to prisoners who
have yet to reach the half-way point of their sentence on that day.
Life sentences, as their name suggests, last for the remainder of the offender’s life. When sentencing, thejudge sets a minimum period – normally known as the tariff – that the offender must serve as a punishment
before being considered for release. Once this minimum period has elapsed, the offender may be releasedby the Parole Board but only if it considers that to be an acceptable risk to public safety. The test is different
from the one described above – here, the Board must decide whether the prisoner would commit an offence
which would harm “life and limb” – this is usually a sexual or violent offence.

B. Criminal Justice Act 2003
The 2003 Act abolished the distinction between short- and long-term prisoners and instead created one
between standard determinate sentences and public protection sentences.
Offenders sentenced to a standard determinate sentence serve the first half in prison and the second halfin the community on licence. The at-risk period no longer applies.
Offenders convicted of a sexual or violence offence may be sentenced to a public protection sentence.
In such cases, the court has to determine whether the offender is dangerous to the extent that he or she islikely to cause serious harm to the public through the commission of a further sexual or violent offence. If
the court does consider that to be the case, it may impose a public protection sentence. There are three suchsentences:•••

life – which should be used where it is available by statute and where the particular crime warrants it;
imprisonment for public protection (IPP) – where the maximum for the offence is ten years or more
and where life is not available or appropriate. An offender sentenced to an IPP serves the tariff as
set by the judge and then is eligible to be released if considered safe by the Parole Board. The only
significant distinction between life and IPP is that, whereas life sentences last for the whole of theoffender’s life, the Parole Board can bring an IPP licence to an end after 10 years in the community
following release;extended sentence – where the maximum for the offence is less than 10 years. An extended
sentence comprises the normal custodial period plus an extension period. The offender may bereleased at any time between the half-way point and the end of the normal custodial period and is on
licence until the end of the extension period.

The Criminal Justice and Immigration Act 2008 changed the provisions so as to give judges more

193

RESOURCE MATERIAL SERIES No.79

discretion over the use of public protection sentences; for use of public protection sentences to be restricted
to offences for which two years’ real time is justified; and for release from an extended sentence to be
automatic at the half-way point of the custodial period with licence extending then until the end of theextension period. These changes apply to cases sentenced on or after 14 July 2008.

XIV. LICENCE
For the duration of the licence, an offender is obliged to comply with the terms of that licence. These may
include requirements to report to the probation service, restrictions as to where he or she may live and whatwork he or she may undertake, and requirements to attend programmes. If an offender breaches his or her
licence he or she is liable to recall to prison, potentially until the end of his or her sentence.

XV. EARLY RELEASE
Offenders serving under four years who meet various criteria may be released up to 4.5 months before
they would otherwise be released, on home detention curfew, subject to an electronically monitored curfew.
Alternatively, offenders who meet other criteria may be released up to 18 days earlier than they would
otherwise have been released on end-of-custody licence.

XVI. OFFENDER MANAGEMENT
Alongside these matters around sentencing, we must also consider offender management, now the jobof the National Offender Management Service. The National Offender Management Model is said to beconsistent with the best available evidence on what works in reducing reoffending.
This service encompasses both the probation and prison services, for the first time seeking to harmonize
and co-ordinate sentence planning and management under a single umbrella. The principles are as follows:Resources should follow risk – the evidence suggests that efforts should be focussed on those offenders who
are at medium/high risk of reoffending;••••Supervisory practices should incorporate elements of pro-social modelling where the offender isactively engaged in the sentence and is motivated, supported and encouraged to change his or her
offending behaviour;
The relationship between the offender and the offender manager is critical with consistency ofsupervision promoting the development of a trusting working relationship;
Supervision and referrals to other agencies for interventions should vary according to the assessedrisk levels and needs of the offender; andReferrals to partner agencies can be beneficial for offenders with multiple needs and for offenders
who would otherwise not have received community supervision. However, the evidence here ismixed.

The objective of the service is for the C’s to be delivered – continuity, consistency, commitment andconsolidation. Risk is then matched to resources using a tiering mechanism based on four approaches. Tier
1 is punish and includes monitoring and “signposting” to the offender. Tier 2 is Help and includes in addition
helping and brokering support for the offender who will fit the low risk and low seriousness criteria. The
help may be with health problems, accommodation, employment or learning skills, for example. Tier 3
adds an additional element of personal change on top of the Tier 2 elements and Tier 4 adds Control. These
offenders may be regarded as dangerous and/or prolific, who need additional restrictions and controls tomanage their risk.
More than half of community and suspended sentence orders ran their full course or were terminatedearly in the first quarter of 2008. But 36% of community sentences terminated for negative reasons and1,860 offenders were in custody in August 2008 for breaching a court order. These numbers need to beconsidered alongside those for persons in prison for breaching their licence following release. In 2007/08,
11,756 determinate sentenced prisoners were recalled to prison – an increase of 5% on the previous year.
In the same period, 926 parolees were recalled – a drop of 24% from 2006/07. The parole rate remained the194THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

same at 36%. These figures show a continued trend of “back end sentencing” – a consequence of legislativechanges and the increased focus and efficiency of the Probation Service in enforcement of licences.

XVII. RISK ASSESSMENT
Risk assessment is at the heart of offender management and underpins sentence planning, resource
allocation, targeting of interventions designed to reduce reoffending and community supervision of
offenders. It is defined as “The systematic collection of information to determine the degree to which harm
(to self and others) is likely at some future point in time.”
For all involved in offender management, making a full and accurate assessment of risk is crucial todecision making. In understanding the boundaries of risk assessment, it must be recognized that theprocesses do not conform to an exact science and that no environment is risk-free. Assessment refers to theprediction of future reoffending (in the UK this is normally measured by reconviction) and the prediction of
the harm, to both an offender and their victim, that reoffending is likely to cause.
Typically, risk assessment measures two types of risk factor- “static” and “dynamic” and methods ofassessment are actuarial or clinical in nature. Static factors are the unchangeable historical characteristics
of an offender – such as gender, age and previous criminal convictions associated with higher rates of
reoffending. Actuarial risk prediction relies on assessment of these factors. It calculates the probability thatan individual will reoffend based on the average reoffending rate calculated from a sample of offenders whomatch that individual on relevant static factors. Clinical risk prediction in contrast is less structured andrelies on interviews and observations of social behavioural environmental and personality factor related
to previous offending. These factors are considered dynamic in nature as they are amenable to change via
treatment and offender management.
Both actuarial and clinical approaches are limited when used alone. Actuarial assessment cannot identify
which offenders will go on to reoffend, merely into which group an individual falls. Clinical assessment
can be more prone to bias as it relies upon judgment and can be influenced by an assessor’s opinion of
the relative importance of different risk factors. A number of tools are available, many of which have beenvalidated on UK populations and these are used as part of risk assessment processes. Some are actuarial,some clinical and others a combination of both. A number of tools predict specific types of reoffending, forexample sexual or violent, others are designed for general application. The most prominent tool now used is
the Offender Assessment System (OASys), which is used to assess risk of general offending, likely degreeof harm and degree of need posed by an offender in a range of areas. Other widely used tools are Risk
Matrix 2000 which predicts the risk of sexual reoffending and Historical Clinical List – 20 (HCR-20) whichmeasures the risk of violent reoffending. Risk assessment in England and Wales is undergoing substantial
re-development. The current OASys reoffending predictor will be replaced in the spring by a refined
actuarial measure. The new measure scores on dynamic factors which research has shown to be most
predictive of non-violent reconviction, such as drug misuse, and accommodation needs, which in addition
to criminal history were the best individual predictors of non-violent reconviction. A separate actuarial
predictor of violence will also be included and this will be used to form the basis for further judgments
regarding risk of serious harm. A further tool is being piloted to examine dynamic risk factors for sexual
offenders being managed in the community, building on the Stable and Acute 2007 tool developed in Canada.

XVIII. PROBATION SUPERVISION INCLUDING HIGH RISK OFFENDERSThe number of offenders starting community orders remains relatively stable – 33,200 started such asentence in the first quarter of 2008. Fifty one percent of these community orders had just one requirement,
14% had 3 or more requirements. Three percent more offenders were being supervised under community
orders on 31 March 2008 than a year earlier, up from 98090 to 101,250. Thirteen percent had no previous
convictions or cautions – 18% had 15 or more.
The number of offenders starting pre- or post-release supervision increased by 4% to 11,870. The
total number of offenders being so supervised was 97,080 at March 2008. This is an increase of over
22% from December 2002 and is largely a result of the changes brought in by the 2003 Act, which means

195

RESOURCE MATERIAL SERIES No.79

that offenders now spend longer on licence. High risk offenders are supervised under Multi-Agency
Public Protection Arrangements (or MAPPA). These are arrangements set up locally to assess andmanage offenders who pose a risk of serious harm. National guidance indicates the use of three levels ofmanagement. Level 1 involves ordinary agency management; Level 2 is where the active involvement of
more than one agency is required to manage the offender. Most offenders assessed as high or very highrisk of serious harm can be managed effectively at Level 2 where the management plans do not require
the oversight and commitment of resources at a senior level. The highest level is Level 3 where it isdetermined that the management issues require conferencing and senior representation from the agencies.
The few cases referred at Level 3 – sometimes known as the critical few – are those whose management is
so problematic that multi-agency co-operation and oversight at a senior level is required, together with theauthority to commit significant resources.
In 2007/08, there were 12,806 Level 2 and 3 offenders. During this period, 79 serious further offenceswere committed by these nominees. The major aim of MAPPA is public protection. Relevant agencies have astatutory duty to co-operate in the arrangements.
There is also the Prolific and other Priority Offender (PPO) Programme which targets those offenders
who commit most crime in the area, or whose offending causes the most damage to the local community.
The three strands of the programme aim to:•••

Catch and convict offenders who commit most crime in their locality or whose offending causes
most harm to their community. There is no standard national definition of PPO. Local areas devise
their own selection criteria based on key principles set out in national guidance. PPO’s are subject tointense police supervision;
Rehabilitate and resettle: this involves working with offenders to stop their offending by offering
a range of supportive interventions addressing identified needs and risks of further offending. The
opportunity to rehabilitate is backed by a swift return to court if offending continues;
Prevent and deter: to stop the most active young offenders escalating into tomorrow’s prolificoffenders through youth justice interventions and continued post-sentence support.

Recent research supports a positive assessment of the PPO programme. A comparison of total
convictions before and 17 months following the programme showed a 43% reduction by PPO offending,and a comparison from the start of the scheme to 17 months after the start showed a 62% reduction inconvictions and a sharp reduction in PPO offending following entry on to the scheme. These reductions
cannot necessarily be attributed to the PPO programme as we do not know what would have happened tothese offenders had the scheme not been introduced.
A new initiative is integrated offender management, the aim of which is to reduce reoffending. It
approaches target offenders in the community who present the highest risks to their communities,
especially those short sentence offenders released from prison with no statutory supervision. There are
five pilot areas. No evaluation has yet taken place but research is being built into the pilots which wereannounced in July 2008 and which will run for two years. The schemes are multi-agency partnerships.

XIX. SENTENCE DISPOSAL PATTERNS
Fines are the most common disposal with 941,500 handed out in 2007 – accounting for 66.6% of all
sentences. Community sentences accounted for 196,400 cases: 13.9% of all sentences, up 3% from1997. Immediate custody was given to 6.7% (95,200), up from 93,800 in 1997, but a similar proportionof all sentences. This does not tell the whole story. Use of the fine for indictable offences has dropped
dramatically in the last 10 years – falling from 27.6% in 1997 to 15.8% in 2007. Over the same period, theuse of community sentences for these offences has risen by 5.3% to 33.7%. The immediate custody rate forindictable offences has remained relatively stable over the past decade, rising slightly from 22.5% to 23.7%
in 2007. This does point to the increase in breach and recall numbers being at the heart of the increase in
the prison population. In 2007, almost 136,000 were sentenced to custody, immediate and suspended – thehighest figure in a decade and up 40% on 1997 numbers. Other disposals include conditional discharges(94,100 in 2007), absolute discharges – 11,000 over the same period down from 18,200 in 1997 andcompensation orders – 165,900 in 2007.

196

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

The fine became a less popular disposal from the 1990s as enforcement became less effective. Much
effort and investment went into improving enforcement and this has paid off in results. In 2007/08, the
new amount of fines imposed was £376 million (including transferred fines from previous years). In thesame year, £256 million was collected and £106 million was cancelled. The paid and cancelled amounts do
not necessarily relate to the fines imposed in that year but could be collected against any fine outstanding
regardless of age. The fine has started to be restored as a credible sentence as a result of the efforts toimprove enforcement which have resulted in a steady year on year rise in payment rates since 2003 – from73% in 2003/04 to 90% in 2006/07. In the six years to 2006, there has been a 23% reduction in the number ofoffences committed by offenders within one year of commencing a court order under probation supervision.
In 2006, 36% of offenders commencing a court order under probation supervision committed at least one
offence in the following year – down from 40% in 2000. In this period, there has been no change in thenumber of most serious offences committed within a year by offenders commencing court orders underprobation supervision.
Similar trends emerge from those released from prison. In the same six years, there has been a 15%
reduction in the number of offences committed by offenders within one year of discharge from custody. In
2006, 46% of offenders released from prison committed at least one offence the following year – down from
51% in 2000. The greatest reductions have been made with offenders sentenced to over one year in prison –over 40% in terms of the number of offences commited.

XX. PROBLEMS AND CHALLENGES OF COMMUNITY-BASED SENTENCES
The first problem – and the most important – is that of public confidence in these sentences, which canbe seen as soft options. The British Crime Survey (BCS) shows that crime has fallen by 10% in the last year,
representing a million fewer crimes. Police recording of crimes has improved while victim reporting of crime
has remained fairly stable since 1997.
Despite this, high numbers of people believe that the crime rate has risen. People have more positive
perceptions of crime in their own area than nationally – 65% thought that crime in the country as a whole
had increased in the past two years compared with 39% who thought that crime in their home area had
increased.
Sentencing has become more complex over recent years. When I appeared before the Parliamentary
Public Accounts Committee last October, one MP asked me for a definition of honesty in sentencing – I
replied that this was about a sentence being clear and transparent and readily understandable to all. The
legal labyrinth which sentencers have to navigate and which practitioners then have to enforce makes sucha concept aspirational. If I had a magic wand, I would use it to clarify sentencing so that people understoodit. This lack of understanding is in my view the biggest barrier to improving public confidence in the system.
Unfortunately, the media does little to help.
We must not underestimate the media influence on public confidence. The trend now seems to be aboutblame and scapegoats when things go wrong – as they inevitably will. I am certainly not suggesting evenfor a moment that officials and agencies should not be accountable – but trial by television or newspaper in
the absence of many of the facts is not the most mature way of proceeding in these cases. Sadly, in the UK,
the public does not accept the facts about the fall in crime and often, according to research polls, regards
published statistics as at best incomplete and misleading, and at worst dishonest. This research indicatesthat people are more likely to believe local rather than national estimates. This is not a quick fix cure but it
is not enough to look only internally and not engage and try to inform the community about your work – andto agree to some press interviews and coverage to try and balance reporting where possible.
I go back to my magic wand. I would also use it to put in place an IT system that was common across thecriminal justice agencies and which would enable good research to be carried out, as well as for information
to be effectively shared. The public just can’t understand why, for example, one police service has
information that isn’t accessed and acted on by police in another area and which may have prevented a highprofile offence.

197

RESOURCE MATERIAL SERIES No.79

There is also the issue of judicial confidence – it is vital that the judiciary is independent and is seen
to be so. Some parts of the 2003 Act – notably the IPP sentence – were crafted so as to take away judicial
discretion and when judges did what they had to do in following the statute with unfortunate consequences,
there was public criticism. It has taken over three years for the worst excesses of this sentence to be
put right by the 2008 Act. What is a great advance is that in those years there is now a proper agreement
between the Secretary of State for Justice and the Lord Chief Justice – the concordat. Communication andunderstanding have greatly improved and this bodes well for the future.
And then there are resources. We were already facing budget pressures before the downturn in the
global economy. All interventions require funding. Our prison population is estimated to increase to
between 83,400 and 95,800 by 2015. Community orders too are projected to go up to 258,500 by 2010/11.
The increase in knife crime and the expectation to prosecute rather than caution these offenders andfor sentencing tariffs here to increase may increase these estimates further. The impact of increased
radicalization as well as the impact of technology on crime will also be challenges. What impact will thecredit crunch have on crime too?
What has been encouraging is the success of partnership work between agencies. I spoke earlier about
MAPPA and integrated offender management as well as the provisions for dealing with the persistentand prolific offender. There are other such partnerships – crime and disorder reduction partnerships andcommunity safety partnerships. These are locally based and involve local government, listening to local
people and aiming to be responsive to local needs and make local people feel safe in their communities.
There are moves to build on the work so far, including having directly elected chairs of these partnerships
and scrutiny committees which will provide people with a way to influence their local police service and holdit to account.
There are also unique opportunities – such as UNAFEI courses and seminars – where we get theopportunity to learn and understand what is happening elsewhere, what has been successful and what
has not. This should enable us to make the best possible use of resources as these come under increased
pressure.

198

IMPROVING THE TREATMENT OF OFFENDERS THROUGH
THE ENHANCEMENT OF COMMUNITY-BASED ALTERNATIVESTO INCARCERATION: THE PHILIPPINE EXPERIENCE
Ismael Juanga Herradura*

I. INTRODUCTION
A. BackgroundIn the Philippines, the treatment of offenders and individuals who are in conflict with the law isundertaken by the government through the Department of Justice (DOJ), the Department of the Interior andLocal Government (DILG), and the Department of Social Welfare and Development (DSWD).
The DOJ supervises and manages the national penitentiaries (for prisoners serving the penalty of
imprisonment for more than three years) through the Bureau of Corrections (BuCor). There are at present
seven national penitentiaries with a total population of approximately 40,000 inmates. Through the Boardof Pardons and Parole (BPP) and the Parole and Probation Administration (PPA), the DOJ formulates,
implements and monitors programmes and activities for offenders on probation and parole, and those
granted conditional pardon with parole conditions through executive clemency by the President. As of
December 2008, the PPA was supervising 34,796 probationers, 13,762 parolees and 852 pardonees, or a totalof 49,410 clients, through its 15 regional offices, 99 provincial field offices and 128 city field offices, or a totalof 227 field unit offices.
The DILG, through the Bureau of Jail Management and Penology (BJMP), supervises and controls city,
municipal and district jails. The Philippine National Police (PNP), also under the supervision of the DILG,
manages the municipal jails that cannot yet be supervised by the BJMP, including lock-up jails or precinct
jails that are used as temporary detention centres for arrested individuals under investigation. The Officesof the Provincial Governor, also under the DILG, manage the provincial jails which, by law, keep convicted
offenders with prison sentences that range from six months and one day to three years. In all, there are 79
provincial jails, 25 sub-provincial or extension jails, 135 district jails, 85 city jails and 1,003 municipal jails
nationwide.
The DSWD operates and monitors rehabilitation centres nationwide for juveniles in conflict with the law(JICL) whose cases are still pending in court. There are 11 rehabilitation centres for JICL in the country. For
the calendar year 2008, DSWD served a total of 1,532 CICL/youthful offenders comprising 1,416 males and
116 females.
As described, it is the PPA that is given the task of treatment of offenders through community-based
programmes of probation, parole and/or conditional pardon. The BPP is simply concerned with policies on
the grant of parole and on the recommendatory measures to the President in cases of executive clemency.
Upon the grant of parole or conditional pardon, the offender is referred by the BPP for supervision to the
PPA. Offenders on probation are referred by the courts of justice.

B. Purpose of the Paper
In the hope of enhancing clarity, simplicity and focus in presentation, the paper will attempt to:
1. Describe the current situations, problems and challenges in the treatment of offenders who are underprobation, parole or conditional pardon;* Administrator, Parole and Probation Division, Department of Justice, Philippines.

199

RESOURCE MATERIAL SERIES No.79

2. Present the measures to improve the treatment of offenders through the enhancement of communitybased alternatives to incarceration; and3. Present the highlights of other community-based alternatives outside the jurisdiction of the Parole andProbation Administration.

C. Legal Bases
1. Probation
Adult probation as a post-sentencing disposition was adopted in the Philippines on 24 July 1976 under
Presidential Decree No. 968. Section 2 of the Decree enumerates the purpose of the law, as follows:a.	Promote the correction and rehabilitation of an offender by providing him with individualized
treatment;b.	Provide an opportunity for the reformation of a penitent offender which might be less probable if hewere to serve a prison sentence; andc.	Prevent the commission of offences.
Of special interest is Section 28 of the law which provides that “to assist the Probation (and Parole)
Officers in the supervision of probationers, the Probation Administrator may appoint citizens of good reputeand probity to act as probation aides.”2. Parole
The purpose of Act No. 4103, as amended, otherwise known as the Indeterminate Sentence Law, is“to uplift and redeem valuable human material to economic usefulness and to prevent unnecessary andexcessive deprivation of liberty.” Under Section 5 of said Act, it is the duty of the Board of Pardons andParole to look into the physical, mental and moral record of prisoners who have served the minimum of theirprison sentence and to determine the proper time of release of said prisoners on parole.
3. Conditional Pardon
Under Section 19, Article VII of the Philippine Constitution, the President may grant executive clemencywith the objective of preventing a miscarriage of justice or correcting a manifest injustice. Such grant may
be exercised by the President motu proprio or upon recommendation of the Board of Pardons and Parole orof any other agency. Conditional pardon may be extended to a prisoner who has served at least one-half ofthe minimum of the original indeterminate and/or a definite prison term.

D. Organizational Mandate of the Parole and Probation Administration
1. Vision Statement
A model component of the Philippine correctional system that shall enhance the quality of life of its
clients through multi-disciplinary programmes and resources, an efficient organization, and a highly
professional and committed workforce in order to promote social justice and development
2. Mission Statement
To rehabilitate probationers, parolees and pardonees and promote their development as integral persons
by utilizing innovative interventions and techniques which respect the dignity of man and recognize his
divine destiny.
3. Goals
The Administration sets to achieve the following goals:
1. Promote the reformation of offenders and reduce the incidence of recidivism; and2.	Provide a cheaper alternative to the institutional confinement of offenders who are likely to respondto individualized, community-based treatment programmes.
4. Organizational Outcome
Rehabilitation of Offenders in a Community-Based Setting and Reduction of Crime Incidence.

200

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

II. CURRENT SITUATIONS, PROBLEMS AND CHALLENGES
A. The Treatment Paradigm

Figure 1. PPA’s Harmonized Rehabilitation Programme

As shown in Figure 1, the PPA treatment paradigm has three major components: 1) Restorative Justice(RJ) as the philosophical foundation or conceptual framework, represented by the frame and handle of theumbrella; 2) Therapeutic Community (TC) as treatment modality, represented by the panelled canopy of theumbrella showing the distinct but overlapping treatment categories, namely: behaviour shaping/behaviour
management; emotional/psychological aspects; intellectual/spiritual aspects; and vocational/survival skills;
and 3) the Volunteer Probation Aide as the lead community resource, represented by a figure holding up
the umbrella in co-operation with the Probation and Parole Officer. The umbrella matrix also highlights theextension of support to both victim and offender and their respective families/communities in the overall
spirit of reconciliation and healing.
1. Restorative Justice Practices as Adopted by the PPA
By way of Memorandum Order No. 12, S.2003, dated 16 July 2003, the PPA promulgated a policy on
adopting RJ practices as a major component of its treatment programme.
The Agency policy defines RJ as a philosophy and a process whereby stakeholders (offender, victim andthe community) in a specific offence resolve collectively how to deal with the aftermath of the offence andits implications for the future.
As a philosophy, RJ treats crime as a violation of people and relationships. It creates obligations to makethings right through involvement of the victim, the offender and the community in searching for solutions
which promote repair, reconciliation and reassurance (Van Ness quoting Zehr, 2002).
As a process, RJ resolves conflicts in a manner in which the response to the crime would be not to add
to the harm caused by imposing further harm on the offender, but to do as much as possible to restore thesituation. The community offers aid to the victim; the offender is held accountable and required to makereparation. Attention would be given not only to the outcome, but also to evolving a process that respects“the feelings and humanity of both victim and the offender” (Martin Wright, quoted by Van Ness, 2002).
Thus, its application entails meetings or a series of meetings attended by all stakeholders – the offender, thevictim/s and the members of the community. RJ seeks to achieve the following: 1) reparation for the victim;2) reconciliation of the offender, the offended and the community; 3) reassurance to the offender that heor she can be reintegrated into society; and 4) enhancement of public safety by activating the offender, thevictim and the community in prevention strategies.
The PPA’s choice of RJ as a conceptual framework of its rehabilitation programme is an affirmation of a201

RESOURCE MATERIAL SERIES No.79

practice that began in 1978 upon the operationalization of the substantive provisions of the Probation Law.
The consultation of the offended party and the community upon the offender’s petition for probation wasa requirement for investigating probation officers on the basis that the inputs of the offended party, thepetitioner’s family and some responsible members of the community could be very critical in the release
and reintegration of the offender in the same community where he or she committed the offence. Moreover,
the theory and practice of RJ is very indigenous in Philippine culture which, historically, maximizes theuse of mediation and conciliation in solving community conflicts. This is highlighted by the adoption of the
Katarungang Pambarangay (Barangay Justice System) in settling disputes at the village level.
The operationalization of RJ in the community is best illustrated through the “Circle of Support” which
was used by the VPA Field Training Laboratory (FTL) team in a village of San Pedro, Laguna. Please refer
to Appendix A for the full-length copy of the article entitled “The Circle of Support: RJ in Community
Engagement and Volunteer Resource Development” by Cecilia G. de la Cruz, Chief Facilitator, NationalField Training Laboratory, PPA.
In the main, the RJ practice generally proceeds in the following manner:(a) Investigation Stage
The investigation conducted by the Probation Officer includes the statement of the victim/offended party
and of the general community towards the crime, the offender and suggestions for his/her/its reparation.
At this stage, the investigating officer tries to ascertain the victim’s readiness for reconciliation with theoffender and the community as well as the community’s capacity to provide support.
(b) Supervision StageThe offender’s supervision treatment plan (STP) shall include the need for RJ intervention as may beneeded and appropriate. The RJ process may proceed in this way:
1) The parties should be brought within the programme of their own free will. Parties should have theright to seek legal advice before and after the restorative process.
2) Before agreeing to participate in the restorative process, the parties should be fully informed of theirrights, the nature of the process, and the possible consequences of their decisions.
3) Neither the victim nor the offender should be induced by unfair means to participate in restorative
justice processes or outcomes.
4) Where no agreement can be made between the parties, the case should be withdrawn from therestorative process.
5) In the event agreement is reached by parties, it should be put in writing to give substance/essence
to the agreement. The failure to implement any provision of the agreement made in the course of therestorative process is a basis for the withdrawal of the case from the programme; and6) Discussions and disclosures made during the process shall be treated with strict confidence and shallnot be disclosed and used against the parties involved.
2. Outcome of the RJ Practices and Processes as Components of the PPA Programme
As shown in Table 1, the RJ practices used by PPA include mediation and conferencing, specially the“Circle of Support.” The outcomes centered largely on the conduct of Community Work Service (CWS) for
clients, the payment of civil liabilities by the offenders and, in certain instances, the reconciliation between
the clients and their respective victims.
These results suggest that through these RJ practices adopted by PPA field offices, the clients, theoffended party and the community are able to see their respective roles in reconciling and restoring
broken relationships. In this context, all the stakeholders have heightened their sense of responsibility
and accountability in pursuing an attitude that is inclined towards restoration and healing, rather thanpunishment and revenge.

202

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
Table 1. Status Report on Restorative Justice Outcomes (CY 2008)
Numbers
RJ Process Used
Total
Involved
Region Supervision
OutcomeCircle ofCaseload Mediation Conferencing
Clients Victims
SupportCWS of 56 clients;
I
2,139
24
15
18
87
94
13 clients paid; CL of
PhP59,809
CWS of 40 clients; partial
II
1,046
19
32
0
47
50
payment of CL by 9clients
CWS of 45 clients; 45 paid
III
2,592
45
40
12
50
37
CL of PhP147,569
CWS of 191 clients; 49
IV
5,897
45
77
10
348
128
clients paid PhP8,000
V
2,270
13
27
1
72
37
CWS of 37 clients
CWS of 126 clients; 35
VI
4,193
56
70
13
305
226
clients paid PhP1,500
CWS of 190 clients;
VII
5,276
14
43
0
193
128
25 clients paid CL of
PhP520,243.10
VIII

2,748

5

15

0

171

48

CWS of 159 clients

IX

1,622

15

105

0

382

16

CWS of 290 clients

X

3,367

28

8

0

70

53

XI

2,265

24

34

1

110

69

XII

1,549

2

23

0

27

24

XIII
(CARAGA)

1,416

2

5

0

62

23

CAR

699

6

16

2

27

22

NCR

12,331

14

11

8

35

22

TOTAL

49,410

312

521

65

1,986

977

CWS of 15 clients;
Rest. – 9
CWS of 30 clients;
Rest. – 5Reconciliation of 2 clientswith victims
CWS of 36 clients; 3clients paid CL
CWS of 10 clients;
dropping ofcountercharges of client
CWS of 5 clients

B. The Therapeutic Community (TC) as a Treatment Modality
TC is a specialized self-help learning treatment modality founded on such precepts as “responsible loveand concern,” “honesty,” “humility,” “forgiveness,” “pride in quality,” “no free lunch,” and others. Its overall
goal is to move the client from “wrong living” to “right living.”
The adoption of TC as the treatment modality in PPA’s community-based programme began in 1998 aftera series of training programmes conducted by Daytop International, Inc. New York, through funding from the
Bureau of International Narcotics and Law Enforcement Affairs (INL), U.S. Department of State. A total of
141 PPA officials and personnel in three batches completed the training.
Efforts were made to suit the treatment modality to the needs of Filipino clients, without disturbing theessence and structure of the modality. Thus, the graduates of the Daytop programme led by the respective
RDs/ARDs formed committees and conducted echo seminars in their respective regions. A national
Committee was organized and tasked to come up with training modules, session plans, and other training
materials to be used.

203

RESOURCE MATERIAL SERIES No.79

For calendar year 2008, the TC action plan centered on five areas, namely: 1) programme
implementation; 2) capacity-building; 3) programme and materials development; 4) social marketing; 5)resource generation; and 6) monitoring and evaluation.
1. Outcome of TC Implementation
As of September 2008, substantial accomplishments were reported and monitored by the 15 regional
offices, as presented in Table 2.
Table 2. Status of TC Implementation (as of September 2008)
RegionField Offices Involved
Number%Clients Involved
Number

%

I

7/13

54

342/2,139

15.99

II

9/9

100

459/1,046

43.88

III

13/14

92

334/2,592

12.88

IV

27/27

100

1,081/5,897

18.33

V

11/14

78

658/2,270

28.97

VI

26/26

100

1,590/4,193

37.92

VII

21/21

100

1,309/5,276

24.81

VIII

12/12

100

398/2,748

14.48

IX

11/13

84

209/1,622

12.88

X

16/16

100

1,158/3,367

34.39

XI

12/12

100

194/2,265

8.56

XII

12/12

100

528/1,549

34.08

XIII

9/9

100

452/1,416

31.92

CAR

8/8

100

370/699

52.93

NCR

21/21

100

1,205/12,331

9.77

TOTAL

215/227

94

10,287/49,410

20.82

RegionTable 2-a. Status of Capacity-Building in TC (as of September 2008)
Participants
Training/Activity
Funding Source
Title
PPOs VPAs Total
3

29

3
29

I

1. Demonstration Training on Drug Testing
2. Basic Training on TC for VPAs
3. Review of Materials and Roles in TC
Implementation
4. Refresher Course on Drug Testing
5. TC Trainers’ Training

17
25
7

5

17
25
12

II

1. B
 asic Training for VPAs

8

11

19

III

1. T
 C Reorientation Seminar
2. T
 C Basic Training for Implementers
3. S pecialized Training on TC, RJ and Volunteerism

53
11

3
-

56
11

-

60
33

60
33

IV

204

1. T
 C Training for VPAs

Donation from officers
Local government units(LGU)
PPA Regional OfficefundsRegional funds
Donation from officers
Regional funds
Regional funds

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

V

VI

VII
VIII
IX

1. Orientation on the TC Programme
2. Family Therapy Trainers’ Training
1. Orientation on VPA Organization and TC
Programme
2. Refresher Course on Drug Testing
3. Managing Resistant Clients and Case Conferencing
4. Orientation Seminar on TC
1. Cluster Meeting on PPA Community-Based
Programme
2. Residential Training on TC
1. TC Orientation Seminar for VPAs
2. Information Dissemination on TC
1. Residential Seminar on TC (Orientation Phase) for
Clients
2. TC Training for VPAs

8
2
2

21

8
2
23

54
25
325

19
2

54
25
19
327

3
-

7
132
46
4

7
132
49
4

2

25

27

LGU funds
NGOs
Regional funds
LGU funds
Donation from officers
and VPAsLGU funds
Donation from officers
And VPAsLGU funds
Regional funds
LGUs
Donation from officers

X

1. Regional TC Committee Meeting
2. Educational Trip to Cocoon Drug Rehab Center
3. TC Enhancement Training

6
15
43

-

6
15
43

Regional funds

XI

1. Orientation Seminar on TC for Parents of Clients
2. Phase One 5-day Residential Training
3. Specialized Training on RJ and TC for VPAs
4. Cluster Meeting for TC Concerns

8
8
5
11

3
2
19
-

11
10
24
11

Regional funds
LGUs

1. TC Orientation Course
2. Seminar on Life Skills for Drug Prevention

32

3
-

3
32

Regional funds

XIII

1. Realigned TC Seminar
2. Seminar on Life Skills for Drug Prevention

17
34

4
-

21
34

Regional funds
LGUs

CAR

1. TC Enhancement Training

39

-

39

Regional funds

NCR

1. TC Enhancement Training
2. Seminar on Management of Drug Cases
3. Orientation on TC

57
3
3

25

57
3
28

Regional Funds
LGUs

XII

Under the Programme and Materials Development component of the TC Action Plan, the following wereaccomplished:
1. Translation of Programme Materials into Filipino and other local languages;
2. Preparation of session plans, visualization exercises, and other teaching aids such as songs, games, etc;
3. Production of other IEC materials for information drives;
4. Designing an evaluation questionnaire for programme monitoring and evaluation.
With regard to social marketing, the accomplishments included the following:
1. Formal information drive using print and media, integrating the three components of the PPA
programme of TC, RJ and VPA;
2. Symposiums/Forums in schools and villages;
3. Organization of Family Associations;
4. General assembly of clients and immediate family members;
5. Meeting with the Anti-Drug Abuse Councils, Provincial/City/Municipal Development Councils, Peace
and Order Councils/Members of the other pillars of the criminal justice system;
6. Publication/distribution of newsletters/primers on the programme;
7. Integrating the programme in community-service projects like tree planting, cleanliness drives, sports
festivals, and the like;
8. Extending assistance, specifically on training, to other agencies such as the LGUs, BJMP, DOH and
DSWD upon their request.

205

RESOURCE MATERIAL SERIES No.79

Under the Resource Generation component of the Programme, the following accomplishments werereported:
1. Submission of proposals to LGUs for financial/technical assistance;
2. Co-ordination with community resources, for use of seminar venues for free or at discounted rates;
3. Fund-raising activities with the help of VPAs and other community partners;
4. Review of the Memorandum of Agreement with DSWD, DILG, NAPOLCOM, PNP, NPS, PNVSCA,
Liga ng mga Barangay , VSO-Bahaginan , Rotary Club, Lions Club and PAVE; and5. Top level advocacy with the Department of Budget and Management for an additional budget for the
Programme.
As to monitoring and evaluation, the following activities were undertaken:
1. Improvement of the Agency’s reporting system;
2. On-site observation of the rehabilitation programme in randomly selected field offices;
3. Revision of the Performance Evaluation System to give due weight to the PPA Rehabilitation
Programme.
		C. The Volunteer Probation Aides (VPAs) as the Lead Community Resource
The enlistment and training of VPAs started in 1977 while the Agency was preparing for theoperationalization of the national probation programme which was to begin on 3 January 1978.
Towards 1980, the VPA programme dwindled from around 2,123 VPAs to only 100, due to budgetary
limitations in the reimbursement of travelling expenses.
Beginning in 2003, through the technical and financial assistance of UNAFEI, PPA revitalized its
VPA system with due consideration of its past experience. Later, with the support of JICA, a three-year
In-Country Training Programme on the Holistic Approach to Volunteer Resource Development wasundertaken from 2006 to 2008. The Project was extended for another two years as a technical co-operation
project until 2010.

D. VPA Programme Objectives
In light of the provisions of Executive Order No. 468 of the President of the Philippines, promulgatedon 11 October 2005, directing the PPA to revitalize its VPA programme and as enunciated in the Policy
Guidelines on the VPA Programme of the Agency, duly approved by the Secretary of Justice on 26 October
2006, the following objectives are pursued:
1. To amplify the extent of services rendered to clients in an effective yet economical means through theuse of volunteers;
2. To develop a competent corps of VPAs who will assist the PPA officers in the effective supervision ofclients;
3. To inculcate greater citizen awareness and understanding of the criminal justice system;
4. To enhance community participation in crime prevention, treatment of offenders and criminal justiceadministration; and5. To foster an attitude of meaningful involvement in the social, economic, cultural and political affairs of
the community.

E. Functions and Responsibilities of VPAs
A VPA is expected to perform the following functions:
1. Work in close consultation and co-operation with the Supervising PPO;
2. Keep all information about the client in strict confidentiality;
3. Maintain an honest recording and monthly reporting of activities to the Supervising PPO;
4. Devote substantial and quality time for supervision of clients and perform the following tasks:
4.1 Offer advice and guidance;
4.2 Act as job placement officer;

206

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

4.3 Refer clients to pertinent agencies for spiritual, mental, economic, social or health needs;
4.4 Implement treatment objectives as provided for in the supervision treatment plan; andact as a resource individual;
5. Endeavour to help the PPO in extending RJ interventions to the client’s situation; and6. Attend TC, RJ and other activities as may be required.

F. The Roles of VPAs
The role of the VPA may be classified into two categories:
1. Direct Supervisor
The VPA should undertake the following:
1.1. Supervise a maximum of five clients at any given time;
1.2. Work Closely with a PPO and discuss the treatment plans and status of clients; and1.3. Submit a monthly accomplishment report to the PPO.
2. Resource Individual
The VPA may act as a:
2.1
2.2
2.3
2.4
2.5

Resource speaker during training activities, information drives, etc.;
Counsellor;
Donor, sponsor or resource manager during fund-raising activities;
Programme co-ordinator of client activities; and aMediator, RJ Implementer, TC Facilitator.

G. Current Status of VPA Programmes
Tables 3-a, 3-b, and 3-c present the current status of the VPA programme in the Philippines:

Region
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
XII
XIII (CARAGA)
CAR
NCR
TOTAL

Table 3-a. Number of Appointed VPAs Given Training
No. of VPAs Appointed
No. of VPAs Trained
298
277
242
129
1,154
605
1,283
852
138
109
725
550
671
555
346
219
435
308
388
216
288
189
223
150
318
92
297
196
562
249
7,368
4,696

% Trained
93
53
52
66
79
76
83
63
71
56
66
67
29
66
44
64

207

RESOURCE MATERIAL SERIES No.79
Table 3-b. Number of VPAs with Clients and Number of Clients Served (CY2008)
RegionNo. of VPAs with Clients

No. of Clients Served

I

38

185

II

95

185

III

191

384

IV

317

1,051

V

94

303

VI

360

783

VII

170

846

VIII

69

192

IX

239

461

X

216

821

XI

129

452

XII

146

582

XIII (CARAGA)

113

346

CAR

109

200

NCR

116

337

TOTAL

2,402

7,128

Table 3-c. Total Number of Members per VPA Association

208

RegionNo. of Association

No. of Members

I

12

61

II

7

102

III

13

803

IV

11

498

V

6

96

VI

20

424

VII

15

521

VIII

6

281

IX

7

371

X

5

108

XI

9

217

XII

4

97

XIII (CARAGA)

8

135

CAR

7

205

NCR

1

312

TOTAL

131

4,231

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
Figure 2. Growth of the PPA Programme, 2003-2008

1. Problems and Challenges
In a survey conducted in February 2008 by the Strategic Pathway on Harmonized Rehabilitation
Programs, aimed at finding out how far along the 227 field offices were in the harmonized implementationof the TC, RJ and VPA components of the programme, it was revealed that TC obtained the highest score in
implementation, VPA second and RJ a close third. Using a self-evaluation questionnaire, the respondents wereasked to rate his or her office implementation of the programme through a 10-point scale with 1 as the lowest
and 10 the highest. The summary of findings showed that, on the issue of sustainability, the average score
ranged from 6 to 8, which was interpreted to be “good enough”, for starters. On the degree of harmonization,very few field offices gave equal attention and emphasis to all the three programme components. One reason
advanced by the Study Committee was the issue of control and focus. Specifically, it was pointed out that in
TC, the field officer/implementer deals primarily with the client over whom he/she has lot of control. In the
VPA agenda, the implementer does not have as much control as in TC, including the fact that VPAs’ grasp of
the programme might not be that full yet. In RJ, the implementer deals with some stakeholders over whom hehas little control and who might be lukewarm or indifferent to the programme, if not downright hostile.
Table 4. Comparative Performance of Field Offices in the Implementation of the Rehabilitation Programme
SCORE
RegionLow
MiddleHighI
No data
No data
No data
II
III
IV
V
VI
VII
VIII
IX
X
XI
XII
XIII (CARAGA)
CAR
NCR

RJ

6.176

VPA

7.277

TC

8.778

RJ
VPA
No data
RJ
VPA
VPA
RJ
VPA
RJ
RJ
RJ
RJ
RJ

7.400
6.380

VPA
RJ
No data
VPA
RJ
RJ
TC
RJ
VPA
VPA
VPA
VPA
VPA

7.700
6.670

TC
TC
No data
TC
TC
TC
VPA
TC
TC
TC
TC
TC
TC

8.200
8.720

6.460
7.200
4.545
6.800
5.640
6.550
4.700
6.000
6.286
6.710

7.310
7.650
4.545
7.000
6.000
7.270
6.300
8.000
7.000
7.290

7.420
8.100
6.500
7.700
7.710
7.910
7.200
8.000
8.143
8.950

209

RESOURCE MATERIAL SERIES No.79

The Study Committee advanced its interpretation of the findings as follows:
2. Why TC Got a High Rating
The reasons given for the rating given to TC were:
1. Belief in the effectiveness of the programme;
2. Availability of manuals and other training materials;
3. Adequate training and commitment of implementers;
4. Programme is well-structured, continuous and with definite schedules;
5. Involvement of VPAs; full support of the community; financial support of LGUs; and6. An effective monitoring system.
3. Why VPA Got a Moderate Rating
The moderate score given to the VPA programme was due to the following reasons:
1. Inability of some VPAs to fix a common time for meetings, training, etc. due to other tasks;
2. Funds for VPA training and travel are not easily available;
3. Minimal community support; ineffective recruitment strategy; and4. Inadequate training and commitment and strong resistance of some implementers.
4. Why RJ Obtained a Low Rating
Below were the reasons given for the low rating given to RJ:
1. Inability of many clients to participate in RJ processes, including the payment of civil liabilities, due topoverty, distance of residence, and fear;
2. Non-participation/lack of co-operation of victims due to antagonism, distance, cultural barriers, andgeneral conditions of peace and order;
3. L ack of personnel and a heavy caseload vis-à-vis RJ as a long and tedious process needing a lot of
preparation;
4. Inadequate training for implementers; programme guidelines and mechanics not clear; and5. Lack of support of some community stakeholders.

III. MEASURES TO IMPROVE THE TREATMENT OF OFFENDERS THROUGH THE
ENHANCEMENT OF COMMUNITY-BASED ALTERNATIVES TO INCARCERATION
In 2006, an inter-agency collaboration effort was made by the pillars of the criminal justice system (CJS)
in the Philippines to come up with a comprehensive study and discussion on how the criminal justice system
can respond to the need to focus on the demand side or on how the poor and the disadvantaged can haveaccess to justice. The fruit of the effort is the Medium-Term Development Plan for the Criminal Justice
System (2007-2010). It was formulated with the participation of representatives from the five pillars. With
funds provided by the United Nations Development Programme, the project was led by the Supreme Courtof the Philippines which engaged the University of the Philippines’ National College of Public Administration
and Governance Centers for Policy and Executive Development (UP NCPAG-CPED) for technical support.
The pertinent problems and issues raised for the corrections pillar and their corresponding strategies are
summarized in Table 5.
Table 5. Measures to Improve the Non-Institutional Treatment of Offenders
Problems/Issues
1. P rohibitive fees and charges
in securing clearances foroffenders applying for probation, parole and other forms of
release.

210

Recommendations/Strategies
1.1 S trengthen inter-agency agreements to reduce fees
1.2 L
 obby for pertinent legislation

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

2. Inadequacy of services fordetainees/ probationers/
parolees.

2.1 S
 ustain the revitalization of the Volunteer Probation Aide (VPA)
programme, including provision for travel, e.g., discounted bus fare,and institutionalize the same.
2.2 E xpand partnership/co-operation with private sector/ individuals.
2.2.1 E nhance the aftercare programmes, particularly among drug
dependents.

3. Enactment of laws relative tocommunity-based alternatives
to incarceration.

3.1 A
 mendment of certain provisions of Probation Law:
3.1.2 C hanging the name of VPA to Volunteer Probation Officer orenactment of a VPO Law
3.1.2 E xpanding the coverage of probationable penalties from 6 years
to 12 years
3.2 M erger of the PPA and the Board of Pardons and Parole
3.3 E
 nactment of a Recognizance Law to allow poor litigants who cannot
post bail to be released on recognizance.
3.4 E
 nactment of a law to unify the correctional system or establishmentof an inter-agency monitoring/assessment system to unify the thrustsof the corrections pillar.

4. L ack of public information on
how corrections work.

4.1 M
 aximizing existing information drives
4.2 E
 ngagement of the barangay information system

In the context of the survey conducted by the Strategic Pathway on Harmonized Rehabilitation
Programme mentioned earlier, and of the outputs in the Monitoring and Evaluation Seminar of the PPA-JICA
Technical Co-operation Project conducted from 12-16 January 2009, the following sets of measures appear
urgent in the improvement of the non-institutional treatment of offenders.
Table 6. Measures to Improve the VPA Agenda in the PPA Harmonized Programme
Key Result Areas
Strategies/Activities
1. Sustained integrationand Harmonizationof TC, RJ and VPA as
major components of
the PPA programme

1.1 C ontinued adoption of the umbrella matrix as a treatment paradigm
1.2 C lear-cut definition of the PPA rehabilitation programme
1.3 H armonization of the reporting system of the rehabilitation programme
1.4 C ontinued training of the VPAs in TC and RJ processes
1.5 C ontinued involvement of VPAs in the conduct of TC sessions and RJ processes for clients

2. Improved recruitment
and appointment
system for VPAs

2.1 C
 ontinued conduct of massive information drives using the IEC materials
produced by the NFTL team
2.2 C
 ontinued and strengthened partnership with the community

3. C ontinuing system oftraining of VPAs

3.1 C
 onduct at least one basic training for FO/cluster per year
3.2 C
 ontinued inclusion of VPAs in specialized training like TC and RJ practices

4. E mpowerment of VPA
Associations

4.1 E
 arly affiliation of VPA association with the national federation (AVPAP)
4.2 C
 ontinued organization of at least one association per field office level
4.3 C onducting team-building workshops for members

5. S upervision workload
of VPAs

5.1 A
 rrangement by each field office to ensure that VPAs are assigned at least
one client for supervision at any given time

6. Monitoring����������������������
and evaluation of the VPA Agenda

6.1 S
 ubmission of required reports by VPAs
6.2 R
 egular visit and observation of field offices by the Regional Director/
Assistant Regional Director/ Administrator
6.3 D ocumentation of activities to make all assessments and evaluation
evidence-based

211

RESOURCE MATERIAL SERIES No.79

IV. OTHER COMMUNITY-BASED ALTERNATIVES TO IMPRISONMENTThe other community-based alternatives to incarceration in the Philippines are mostly provided underRepublic Act (RA) No. 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006, and areapplicable to juveniles or children in conflict with the law (JILC/CICL). These alternatives are outlined
below.

A. Intervention Programme for CICL Exempt from Criminal Liability
Section 20 of RA 9344 provides that “if it has been determined that the child taken into custody is 15
years old or below, the authority who will have initial contact with the child has the duty to immediately
release the child to the custody of his/her parents or guardians, or in the absence thereof, the child’s
nearest relative. Said authority shall give notice to the local social welfare and development officer who will
determine the appropriate programs in consultation with the child and the person having custody over thechild. ”
The intervention programme may include counselling, skills training, education and other activities thatwill enhance the child’s psychological, emotional, and psycho-social well-being.

B. Diversion for CICL who acted with Discernment
It includes the process of determining the responsibility and treatment of a CICL on the basis of his or
her social, cultural, economic, psychological or educational background, without resorting to formal court
proceedings.
The diversion programme includes mediation, family conferencing and conciliation and, whereappropriate, indigenous modes of conflict resolution in accordance with the best interest of the child, with aview to accomplishing the objectives of restorative justice and the formulation of a diversion programme.
The following factors shall be considered in formulating a diversion programme:
1. The child’s feelings of remorse for the offence committed;
2. The parents’ or guardians’ ability to guide and supervise the child;
3. The victim’s view about the propriety of the measures to be imposed; and4. The availability of community-based programmes for rehabilitation and reintegration of the child.

C. Release on Bail or Recognizance
Release of the CICL on bail or on recognizance or his or her transfer to a youth home or youth centre incases where he or she is not suitable for diversion or where diversion is not acceptable to his or her parents
or is not appropriate as per assessment and recommendation of the social worker.
D. Automatic Suspension of Sentence
Section 38 of RA 9344 provides that if the CICL is found guilty of the offence charged, the court shalldetermine and ascertain any civil liability; however, instead of pronouncing conviction, the court shall place
the CICL under suspended sentence without need for application.
E. Probation
Probation for a CICL who failed to rehabilitate while under suspended sentence.
F. Exemption
Exemption of the CICL from prosecution for crimes of vagrancy, prostitution, mendicancy, and sniffing of
rugby. Instead, the CICL shall undergo an appropriate counselling and treatment programme.
V. CONCLUDING STATEMENT
The treatment of offenders in the Philippines through the enhancement of community-based alternatives
to incarceration has been reformed in the last few years. The trend is towards using the holistic approachin strengthening the individualized community-based programme, in close adherence to the United Nations
Standard Minimum Rules for non-custodial measures, also known as the Tokyo Rules. The journey has

212THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

been attended by some barriers but with the overall commitment, capability and collective effort of all
stakeholders, specifically, the human resources of the PPA, and the full support of its partners, local andforeign, much headway has been achieved.
The signals are quite clear that with the issues of continuity and sustainability duly addressed, theultimate goal of improved crime prevention and treatment of offenders will be within reach in the very near
future. As this happens, the PPA will be ready to execute the idea of establishing a research and training
institute that would largely focus on the effective modes and strategies of engaging the community in thetreatment of offenders and in the prevention of crimes.

213

RESOURCE MATERIAL SERIES No.79

APPENDIX A
THE “CIRCLE OF SUPPORT”: RJ IN COMMUNITY ENGAGEMENT
AND VOLUNTEER RESOURCE DEVELOPMENT
Cecilia G. Dela Cruz *In 2003, the Parole and Probation Administration decided to revitalize its programme, which had
dwindled due to multiple factors. With the possibility of long-term support for the programme from JICA
(Japan International Cooperation Agency) and UNAFEI (United Nations Asia and Far East Institute [forthe Prevention of Crime and the Treatment of Offenders]), the agency set up a pilot project (that was later
converted into a Field Training Laboratory) that validated the processes and systems for volunteer resource
development.

I. COMMUNITY ENGAGEMENT AND THE RECRUITMENT OF VOLUNTEERS
When the team first went to the communities covered by the project in four municipalities in Laguna,i.e. San Pedro, Biñan, Sta. Rosa (now a city) and Cabuyao, the members were daunted. While it was easy togo through the process of recruitment and training of individual volunteers, and later organizing them into
teams, they realized that the programme needed to have a context. Community engagement then became anecessary process. This was also experienced by the other Field Training Laboratory set up in Bataan.
The team had to sort through different approaches and strategies to begin the process of community
engagement. At one point, they decided that it would be best to have as point of entry the issue of grassroots
participation. The difficult part was the identification of a conceptual framework on which to anchor theengagement.
After consultations, it was decided that the best conceptual framework would be Restorative Justice(RJ). Initially, the idea was simply floated in the communities, especially during the information drives
and dialogues with local community institutions. After enough curiosity had been aroused, more detailed
discussions of the concept were conducted. In these discussions, those involved realized that not only was RJ
a desirable objective, it was also identified as the most feasible focus for grassroots participation. Although
the form and process were not easy to determine, it was clear to see that as a concept, it would be easy tooperationalize because the communities saw that it was inherent in Filipino psychology and culture.
In the kapwa psychology of the Filipino, the “shared inner self” is pivotal in all interpersonal transactions.
Even in its ethics and philosophy, which is a combination of the behaviorist and humanist approaches, thepersonhood or inner self is of paramount importance. The idea of reconciliation as an end part of justice was
not difficult to accept; the Filipino believes that whatever he does to his fellow man is reflected unto himself.
This therefore paved the way for community engagement in pursuit of Restorative Justice.
The restorative process is relatively new in application, but it has existed as a principle ever since humanbeings thought of grouping themselves into communities. Restorative processes are particularly evident inindigenous cultures. It was only with the influx of Western thoughts and values into indigenous cultures likeours that there was a change in attitudes towards crime and offenders. Yet later on, the need arose for a morehumane system of dealing with crime. People began to recognize that there is a need to restore relationships
within a community.
Some advocates of RJ in different cultures worldwide had developed models in which they applied
restorative processes and values. Some of these are mediations, family group conferences, circles and* The author is a registered social worker who was Chaplaincy Program Assistant at the Bureau of Corrections for eight years.
She is a Chief Administrative Officer at the Parole and Probation Administration where she has been working for the lasttwelve years. She is also the Chief Facilitator for the In-Country Training Program for Volunteer Resource Development of the
PPA.

214

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

community services. In the Philippines, there are groups advocating for the adoption of the restorative
process in dealing with crime. Just as other countries have seen the inadequacy of the retributive system,
there is now more enthusiasm for RJ in this country. The probation system has also considered adopting thisapproach.
The pilot project on the holistic approach to the rehabilitation of offenders used RJ as the conceptual
framework. It was determined that RJ is an important concept in rehabilitation because it involves thecommunity, which is the core characteristic of community-based corrections. By involving the community,
the broken relationship, which is a consequence of an offence, can be repaired and restored. The Volunteer
Probation Aides (VPAs) who participate in CS provide the empirical objectification of “community”.
But the restorative process remained a concept for some time. The main activities of the project
team focused on introducing the concept at the grassroots level. The responses towards the alternativeknowledge were very good. However, its application remained quite vague.
So far, the only form that has been tried in the pilot areas is the “Circle of Support”. In the modelthat was developed, the offenders were involved in drug abuse and illegal fishing. Although these cases
are labeled as “victimless crimes,” that is not exactly correct because whole communities were actually
victimized by the effects of these offences. The concept was crystallized with the help and advice of theprime advocate of Restorative Justice in the country, Brother Rudy Diamante. CS defines restoration as
moving forward, as a time to start healing. To foster healing means to have support. Around this thought
revolves the idea of the “Circle.” The volunteers from San Pedro, Laguna created a hybrid model that should
be suitable for a particular community and the particular crime and persons involved. In that sense, thiscircle model brought together clients of one community with similar offences. The team used one barangay
in San Pedro as the locus for the process. The problem in this community was drug-related.
The idea of the “Circle” is to bring about reconciliation between the offender and the community throughdialogue.

II. OPERATIONALIZING THE ‘CIRCLE’ AT GRASSROOTS LEVEL
The idea of the “Circle” is to bring about reconciliation between the offender and the community throughdialogue. The “Circle” is composed of the offender/s and two or more three persons of their choice who canprovide them with moral support during the dialogues, community representatives from the sectors mostaffected by the offence, the offender/s’ Volunteers Probation Aide/s (VPA) and Parole and Probation Officer/s (PPO), and local government officials who could provide follow-through rehabilitation services for theoffenders.
The restorative process began by preparing the participants of the Circle. Here, the offender will takeresponsibility for the negative effects of the crime he or she committed. Then, he or she may decide to makeamends for it in ways agreed on by the victims/community. Restoration thus begins.

A. The “Circle” in San Pedro, Laguna
The first “Circle” was organized by the team in a barangay in San Pedro, Laguna. It involved
three offenders from the community involved in drug abuse. They each had one or two “supports.”
Representatives from the local Catholic church, school and residents, as well as barangay officials and the
VPA and PPO, composed this “Circle”. As agreed, they met every other Saturday at the community chapel
after Mass (a Catholic religious service). There were a total of six sessions each, one of which lasted for anhour.
The first session was like a forum for all participants, especially for the community members. An
orientation on the concept, nature, goals and processes of Restorative Justice was conducted. The barangay
captain, probation officers as facilitators, volunteer probation aides (some of whom were barangay council
members), a representative from the local Catholic church, and representative from the local school
attended the said session.

215

RESOURCE MATERIAL SERIES No.79

In the second session, two client-offenders attended together with the members of their personal
support system. One brought his brother; the other brought her cousin who is a Protestant pastor. The
volunteer probation aides handling their cases were also present. The process was held just after the 5:30
p.m. Mass in the San Roque chapel. The circle was comprised of 19 participants. The facilitator started withasking how the commission of crime affects anyone in the circle.
“It made me quiver as I walked back and forth inside the house while my son would bang himself against
the door of our house. I felt much fear”, said a participant-mother speaking about a son who was taking
drugs and who had brought its ill effects upon his family.
Other members soon spoke about their own plights. One shared her feeling as an aunt with a nephew
who turned violent every time he had hallucinations brought about by drugs. Others talked about othereffects of drug-related offences on the community. At one point, a volunteer went out of the room when
he heard noises outside the chapel and reported back that there was a drug peddler on the run. This
incident made the group see more closely the negative effects of illegal drugs on the community. More of
the participants expressed their individual sentiments. Having seen the impact of the offence, all of themrealized that they had a responsibility to be involved even in small ways in countering this kind of crime.
A discussion followed with the unfolding of a client’s experiences. He talked about his own dilemma of
being tagged as a drug-user. Some of his personal plans were disrupted, he said, because of his hesitation
brought on by the fear that he might be rejected by others once they found out about his wrongdoing in thepast. He said that it was like having a “lamat ” , or a flaw or stain on his personality.
Two volunteer probation aides even disclosed their previous addiction to drugs. They told about thehardship they underwent to change for the better. They stressed the value of self-motivation and support
from outside and noted that if they had been able to change, others could do it as well. They professed thatthey can be used as instruments to teach a lesson to those who are taking drugs and to help them change.
The discussion was fruitful. Only one client did not talk because of her personal reservations. The session,
which lasted about two and a half hours, closed with a challenge for the clients to continue to change. The
principle of confidentiality, which applies to every word spoken within the circle, was reiterated to theparticipants and upheld at all times.
Two weeks later, the third session was conducted. The same participants attended, with the addition ofa client and two representatives from the school and the absence of the two clients from the last session.
The facilitator started with the questions: “Is this activity worthy to be continued? Do you find any value inundergoing this? Is there a need for this Circle?” The responses were all favourable. The participants saw
the need to address the effects of drug addiction in their area. Aside from realizing the help that they could
extend simply by giving oral support towards an offender’s continuing change, the participants also saw the
Circle as a venue to air and resolve grievances.
In restoring the relationships broken by a crime, the offender should start with ownership and assuming
responsibility for the crime he or she committed. The victim and community then recognize this admittanceof failure on the part of the offender. Stigmatization would thus be eliminated. When the different parties
achieve openness, and total understanding of one another, making amends is then possible. The community
members had very positive takes on making amends. In fact, several members of the circle encouraged aclient to let the community see what she was doing to show that she had already changed. One suggestion
was for the offender to give testimonies about her experience with drugs; for instance, addressing pupils/
students in classrooms, to serve as an example to the rest of the community. The client was hesitant,however, to do something so public, and the rest of the circle participants understood and affirmed the valueof voluntary action on the part of everyone, including the offender.
On the other hand, drug abuse is the main offence classified as a victimless crime. Naturally, it is theoffender him or herself who is seen to have suffered from taking illegal drugs. But the external effects
of drug abuse also eventually affect the taker’s immediate family as well as the other members of thecommunity. It was thus decided that the community itself is victimized by this offence.

216

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

B. The “Circle” in Orion, Bataan
A “Circle” was also organized in a fishing community in Orion, Bataan. The offenders were all involved
in illegal fishing. Participants in the circle were members of the community such as the “Bantay Dagat” , thelocal police and a representative from the Mayor’s Office, as well as the VPAs and PPOs of the offenders.
In the initial session of this “Circle,” the offenders were quite belligerent and initially insisted that they
merely resorted to illegal means of fishing in order to survive. It was easy to see that the issue was a conflict
between the law and what the offenders perceived as a right. This “Circle” holds regular sessions, evenafter the offenders have asked for forgiveness for their offence, with the hope that there will eventually be
closure in terms of an agreement between the offenders and the service providers on what specific services
they need as follow-through for their rehabilitation process.
As in the CS in San Pedro, the community church members in Orion had a strong influence in changing
the initial belligerence of the offenders to humility and hiya . Most of the offenders and their families became
involved in church fellowships. Slowly, Christian doctrine became fused with the idea of Restorative Justice.
The CS, as a model of Restorative Justice process that was tried and developed by the Field Training
Laboratories (FTL), is now being shared with other unit offices of the agency. Several more “Circles”
have been organized by the FTL in Laguna and have on-going sessions. The CS has thus evolved from atheoretical model into an initiative started within a community. With the participation of the community
members and their responses to the process, the goal of having a peaceful society is deemed realizable byreconciling and restoring relationships. After all, our indigenous culture of eternal and communal support
towards each other has existed a long time. It is all a matter of looking back to our roots.

III. SUMMING UP:
BUILDING COMMUNITIES THROUGH PARTNERSHIPP WITH VPAs
Based on the experiences in the Laguna and Bataan FTLs, the following insights were gained:
1.	There is a set of preparatory activities that need to be carried out before starting a “Circle ofSupport”, such as the following:a. Client’s orientation on the process and expectations;b. Meeting with VPAs;- presentation of client’s concerns and issues;- identification of community members who will participate in the “Circle”;
c. Enlisting the support of the other participants in the process;d. Setting the first session in a venue that is conducive to serious discussion;e. Engaging the community with the VPA as a participant.
2.	The following roles of the VPA in the process were identified:a. In establishing the “Circle”:- identify and recommend the proper authorities and community members who will comprisethe “Circle”;- assist the PPO in advocating and co-ordinating the preparations;- assist in preparing the clients for the sessions.
b. In sustaining the process:- act as moderator and facilitator;- act as a resource person;- be a catalyst for community support;- be part of the client’s support system.
3.	Prospects
a. It is possible to turn over the “Circle” to the community with the VPAs as facilitators;
b. A real community engagement takes place when the community has realized that it is
responsible for sustaining the initial steps taken by the client towards reformation.

217

RESOURCE MATERIAL SERIES No.79

4.

Long-term impact
a. Full reintegration of the client into community life;b. Prevention of crime and recidivism.

In essence, the CS is all about relationships. Persons bond with one another through their common
humanity. But when someone commits a crime, harm is done and links are broken. The victim reacts withresentment, and often, with fury. People in the community usually stigmatize the offender. For many years,
the answer for every crime committed has always been punishment. As a result, the offenders were often
isolated from the rest of the community. This is the retributive system of justice. Looking at it superficially,
it is very logical to be punitive. But as people became more understanding of each other’s humanity,
alternative ways of thinking flourish, such as that of Restorative Justice.
The RJ perspective says that “crime is suffering, and the end of crime is possible only with the end of
suffering.” Thus, the answer to crime is not punishment, but healing and restoration.

218

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSREFERENCES
Catholic Bishops Conference of the Philippines – Episcopal Commission on Prison Pastoral Care (2004).
“Restorative Justice: A Source Book,” 2004.
Co, Manuel G. (2008). “An Assessment of RD’s Restorative Justice Program in the Parole and Probation
Offices of Bataan, Sta. Rosa City and Baguio City.” Unpublished Master’s Thesis, National Defense Collegeof the Philippines, Quezon City, October 2008.
Diamante, Rodolfo S. and Cesar G. Banaag, eds. (2007). Justice that Heals: Forgiveness andReconciliation. Manila: Coalition Against Death Penalty (CADP).
National Police Commission – Technical Committee on Crime Prevention and Criminal Justice (2008).
2008 National Crime Prevention Plan.
Parole and Probation Administration (2008). Operational Plan for Calendar Year 2008.
Parole and Probation Administration (2008). 2008 Annual Report, January 2009.
Parole and Probation Administration National TC Team. “Realigned Therapeutic Community Program:
Revised TC Manual, Phase I to IV.,” A Manual for Agency Implementers, 2005.
Perfas, Fernando (2002). The Process of Building a Therapeutic Environment. New York: By the Author.
Presidential Decree No. 968. “Establishing a Probation System,” July 24, 1977.
Presidential Decree No. 1508. “Establishing a System of Amicably Settling Disputes at the Barangay
Level.” June 11, 1978.
Republic Act No. 9344. “An Act Establishing A Comprehensive Juvenile Justice and Welfare System,”
April 28, 2006.
Supreme Court of the Philippines (2003). “Strengthening the Other Pillars of Justice through Reforms in
the Department of Justice.” A Diagnostic Report, February 2003.
Supreme Court of the Philippines (2006). “Medium-Term Development Plan for the Criminal Justice
System (2007-2010)”. Final Report, December 2006.
Toch, Hans, ed. (1980). Therapeutic Communities in Corrections. New York: Praeger Publishers.

219

COMMUNITY-BASED ALTERNATIVES IN SENTENCING
Bala Reddy*

I. INTRODUCTION
Punishment in the modern context has acquired a profound, new meaning. It has evolved into a concept
encompassing traditionally favoured principles of deterrence, retribution, prevention, and the presently
popular principles of rehabilitation and restorative justice. In 1965, the dominant sentencing philosophy in
Singapore was observed to be retributionist, with greater emphasis given to the objectives of retaliation
against the accused and deterrence than to the needs and reformation of the offender.1 Some fifteen years
later, the sentencing philosophy was observed to have remained remain largely the same.2
Experience has shown that this approach led to an extremely high rate of recidivism.3 Furthermore,such an approach is no longer adequate in light of changing social trends; it does not address the underlying
issues in the increasing number of offences arising from those trends, such as attempted suicides, teenage
promiscuity and mental illness and disability in offenders.
Therefore, our response has been to adapt our penal philosophy to include rehabilitation as an equallyimportant objective.4 In fact, we go as far as to recognize that the need to address the injury caused to thevictims and community is also as important as the reformation of the offender. A restorative justice approach
which advocates the use of community-based alternatives to custodial sentences was thus factored into theskein of our sentencing principles. The Community Court, which was launched in June 2006, was especiallycreated to give greater scope for the court to give effect to our current penal philosophy.
The ethos of offender rehabilitation is not merely confined to the courts; it permeates the othercomponents of our penal system. Our biggest correctional agency, Singapore Prison Service, has in place asophisticated and carefully thought through offender rehabilitation programme which continues to assist theoffender even beyond the prison walls. For these measures and programmes to be successful, there has tobe “a progressive attitude towards ex-offenders”.5 The Yellow Ribbon Project was therefore set up in 2004
to educate the public on the need to give ex-offenders a second chance. Recidivism is a key measure of ourefforts and I am glad to say that we have one of the lowest recidivism rates in the world.6 Our penal system
also enjoys the confidence of the public because its approach secures justice, not only for the State and theCommunity, but also for the offender.
To merely describe the present approach and the measures implemented without first understanding“why punish7” would be a vacuous exercise because punishment is no longer an end in itself but rather ameans to achieving a myriad of objectives. Therefore, an examination of the basis of sentencing an offenderis necessary.

* Principal Senior State Counsel, Head, State Prosecution Division, Attorney General’s Chambers, Singapore.
1 Professor Tommy Koh, “The Sentencing Policy and Practice of the Singapore Courts” (1965) 7 Mal. L.R. 291, at p. 294.
2 Peter English, “Sentencing in Singapore” (1981) 23 Mal.L.R. 1, at p.24.
3 “Our History” , Singapore Prison Service, http://www.prisons.gov.sg/our_history.html
4 K.Shanmugam, Law Minister, “Singapore’s Penal Policy (Review)” , Singapore Parliamentary Report Vol.85 Sitting No.7,
Oral answers to questions, 19 Jan 2009 – attached in Annex A.
5 Per Chief Justice Chan Sek Keong, Opening address at the Yellow Ribbon Conference 2006, 27 September 2006.
6 K Shanmugam, op cit n.4 above.
7 Adapted from Why Punish? by Nigel Walker, (Oxford University Press, 1991).

220

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

II. WHY PUNISH?
The classic principles of sentencing philosophy have been succinctly encapsulated in four words:
retribution, deterrence, prevention and rehabilitation 8 and adopted with much approval by courts in
Singapore.9 Each principle has generated much theoretical discussion which attempts to find a basis forpunishment as a response to the question, “why punish”? Perhaps the most instinctive, if not primal,
response to the question is retribution.

A. Retribution
To express the retributive principle simply, punishment is justified because the offender deserves it or as
the Old Testament puts it, “an eye for an eye, a tooth for a tooth, and a life for a life”.10 Within the brutally
clear message are overtones of censure as the offender is held accountable for his or her misdeeds. Hence,
it has been suggested that retribution is the notion of getting the offender to pay for what he or she owes,that is, his or her debt to society.11 However, this is by no means restorative justice because sentences
imposed with retribution as a primary concern generally do not make offenders liable personally to thevictim for the injury their actions have caused since the emphasis is on hitting back at the offender12 rather
than to address the injury caused to the victims.
B. Deterrence
Related to the principle of retribution is deterrence. An important component of the retributivist principle,
censure when expressed through the imposition of court-sanctioned punishment deters people from committing
offences since doing so defines them as criminals.13 What this incidentally demonstrates is the paramountobjective of deterrence: people refrain from committing offences because of their aversion to the consequences.
Two types of deterrence exist: specific deterrence and general deterrence. Specific deterrence focuseson the offender him or herself and aims to deter the offender from repeating his or her criminal conduct14
by instilling in him or her the fear of reoffending through the threat of punishment he or she will receive fordoing so.15 General deterrence, on the other hand, is directed at educating and deterring members of thegeneral public,16 either through the form of legislation sanctioning punishment for specific offences or theimposition of a substantial sentence for certain offences, both of which are designed to convey the message
that offences of a particular nature will not be tolerated.17
It is obvious that the emphasis of the deterrence principle is on its ability to benefit the greater good andpunishment is therefore justified, even if harm is caused to the offender, so long as the harm it seeks to preventis greater than the harm caused to the offender when punishment is imposed on him or her. It is accepted thatpenalties do deter but because scant regard is given to the type of punishment which ought to be imposed on
the offender, only the symptoms and not the root cause of the problem are dealt with. Kleptomaniacs would
keep on stealing and unhappy neighbours would continue feuding even if sentences are enhanced.

C. Prevention
Perhaps the most fearsome principle is the principle of prevention because sentencing based upon
prevention as a primary consideration necessarily results in harsher punishment. The policy is that of
selective incapacitation: offenders who are deemed dangerous or persistent in reoffending are incarcerated,usually for extended periods, in order to protect the public and to reduce crime. The notion of prevention is
8 R v Sargeant [1975] 60 Criminal Appeal Reports 74 at p.77.

9 PP v Tan Fook Sum [1999] 2 SLR 523. Chua Tiong Tiong v PP [2001] 3 SLR 425; PP v Goh Lee Yin [2007] SGHC 205.
10 Exodus 21:23 – 27.

11 Nigel Walker, Why Punish? (Oxford University Press, 1991), p.73.

12 “The Expressive Function of Punishment”, A Reader on Punishment, Joseph Feinberg (ed. Anthony Duff and David
Garland, Oxford University Press, 1994) p.76.
13 “Censure and Proportionality”, A Reader on Punishment, A. von Hirsch (ed. Anthony Duff and David Garland, Oxford
University Press, 1994) p.120.
14 PP v Tan Fook Sum [1999] 2 SLR 523.
15 PP v Law Aik Meng [2007] 2 SLR 814 per Justice V.K. Rajah.
16 Meeran bin Mydin v PP [1998] 2 SLR 522.
17 Xia Qin Lai v PP [1 999] 4 SLR 343.

221

RESOURCE MATERIAL SERIES No.79

reflected in punishment policies such as mandatory minimum sentences, preventive detention and corrective
training.18 Such offenders are removed from society for long periods and they are therefore the category ofoffenders who require more assistance towards reform and reintegration than the average offender.

D. Rehabilitation
Under the rehabilitation principle, crime is perceived to be the symptom of a social disease and theobjective of rehabilitation is to cure that disease. Unlike the three sentencing principles discussed thus far,rehabilitation involves an examination of the offence so that the appropriate punishment can be imposed witha view to changing the offender’s values so that he or she will learn that such conduct is wrong and refrainfrom committing offences in the future. After all, it is undisputed that a substantial proportion of the prison
population hail from the lower socio-economic strata and because of their social circumstances like poverty andlack of education, they are sometimes led to crime. Recognizing this, the Singapore Prison Service’s strategy
has been to invest heavily in education and training to keep offenders on the right path after their release.
It is therefore clear that the benefits of rehabilitating offenders accrue not only to the individual, butalso to society at large.19 It is unsurprising that rehabilitation has come to enjoy considerable support asan alternative to conventional methods of punishment since it produces a win-win situation: lower rates ofrecidivism translate into a safer environment for all to live in, while higher rates of ex-offenders engaging in
gainful employment facilitate better economic progress for the nation.

E. Restorative Justice
There has been much emphasis in recent times on restorative justice. However, restorative justice is by
no means a recent concept and is in fact “grounded in traditions from ancient Arab and Western civilizations
and in Hindu, Buddhist, and Confucian traditions”.20 In Arab civilizations, there is the Pentateuch which
specified restitution for property crimes in Israel, and the Code of Ur-Nammu (c.2060 BC) required
restitution for offences of violence in Sumer. As for Western civilizations, there is the Roman Twelve Tables(449 BC), the Irish Brehon Laws, the German tribal laws under King Clovis I (496 AD), and the English
Laws of Ethelbert of Kent (c.600 AD) which all required some form of restitution for offences.
It is obvious by now from the ancient examples that an approach based on restorative justice goesbeyond the reform and rehabilitation of the offender. The concept of restorative justice is a fine balance ofa multitude of objectives: a balance between the therapeutic and retributive models of justice; a balance
between offenders’ rights and victims’ needs and a balance between the need to rehabilitate the offender andthe duty to protect the public.
Recognizing this, the courts started to incorporate restorative justice processes into their sentencing
philosophy. These processes are largely non-custodial in nature and include victim-offender mediation,family group conferencing, restorative or community conferencing, community restorative committees andrestorative circles which assist the offender in his or her successful transition back to the community.
Community-based alternatives have received the stamp of approval by the United Nations since 1990
through its Standard Minimum Rules for Non-custodial Measures – the Tokyo Rules.21 While Singapore
is not a signatory to the Rules, the sentencing approach is very much in line with its philosophy which
promotes the use of non-custodial measures. A commonly used measure is probation because it rehabilitates
the offender effectively, with maximum involvement of the offender’s family or the community, andreintegrates the offender into mainstream society as a socially responsible and law-abiding person.22

18 Sentencing Practice in the Subordinate Courts, Ch 3: General Objects of Sentencing.
19 PP v Goh Lee Yin [2008] 1 SLR 824, 863.

20 J Braithwaite, “Restorative Justice”, Handbook of Crime and Punishment (edited by Michael Tonry, NY: OUP, 1998), p.323 –344.
21 United Nations Standard Minimum Rules for Non-custodial measures (The Tokyo Rules) adopted by General Assembly,
Resolution 45/100 of 14 December 1990.
22 Chomil Kamal, then Chief Probation Officer, MCYS, “The Probation Service in Singapore”, www.unafei.or.jp/english/pdf/
PDF_rms/no67/04_Ms.Kamal_p61-p74.pdf

222

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

One such example is the approach taken in late 2005 in the case of the 17-year-old blogger23 who wasconvicted of making racist remarks against Malays. Instead of imposing a custodial sentence, the court
imposed 24 months’ supervised probation with unique features to address the accused’s offending behaviour.
The offender was tasked to perform community service at centres specifically catering to the needs of
Malays, the very people he insulted.
A very different fate befell the 18-year-old offender24 with an IQ of 58 whose appeal was decided in theHigh Court just three weeks before the blogger’s case. The teen was a repeat offender and was once again
convicted for molestation in the Subordinate Courts. The unrepresented teen then appealed against his
sentence to be spared the cane. However, in view of the seriousness of the offence, he was not spared thecane and his sentence of imprisonment and caning was enhanced. The decision drew much public attention
and even sparked off a parliamentary debate on how the courts should treat mentally disabled offenders.
The call for a more updated sentencing approach which does more than merely punish finally culminatedin the setting up of the Community Court, the symbol of Singapore’s endorsement of the ethos of using
community-based alternatives to custodial sentences.

III. THE COMMUNITY COURT
A. Profile
The Community Court was set up in June 2006 as a specialist court to respond to the needs of thecommunity25 and social trends which have translated into crime. More teenagers are engaging in sexual
activities. Neighbourhood spats have increased. There is also the disturbing increase in attempted suicides.
As demonstrated before, there was also the call for rehabilitation or sentencing options which provide help
rather than mere punishment for offenders with mental disabilities and disorders.
Conventional custodial sentences or fines would clearly not make these problems go away since they do
not strike at the heart of the ‘disease’. Therefore, the Community Court’s approach is “a problem-solving one
that combines criminal justice and community resources for a comprehensive response” to deal with suchsocial problems. Cases under the Community Court include youthful offenders aged 16 to 18 whom by reasonof their age are not within the purview of the Juvenile Court, carnal connection offences by youth offenders,
offenders with mental disabilities or disorders, neighbourhood disputes, attempted suicides, animal cruelty,cases which have impact on race-relations and selected cases involving offenders above 65 years old.

B. Sentencing Options
The Community Court is like any other court of law in Singapore. However, as its sentencing
considerations are different, it makes use of sentencing options such as probation, deferred sentences,conditional discharge and community service orders in addition to conventional sentences of imprisonment
or fine. Other features of the restorative justice model are employed by the Community Court to achieve
its desired goal in sentencing. Through Community Court Conferences facilitated by a case manager, issues
such as victim-offender mediation, family group conferencing and restorative conferencing are addressed.
C. Proposal to Increase Community-Based Sentencing Options
There has been encouraging public support for the efforts of the Community Court and its innovative andsensitive treatment of offenders and victims of crime, an approach which is endorsed by the Government.26
In fact, the Community Court’s efforts have been so successful that the Ministry of Law recently announced
its proposal27 to increase community-based sentencing options to include:
23 PP v Gan Huai Shi , reported 24 November 2005 in “Today”.

24 Iskandar Muhamad Nordin v PP , [2005] SGHC 207, decided on 4 November 2005.
25 Chief Justice Chan Sek Keong, Keynote Address, 15th Workplan 2006/2007.

26 Associate Professor Ho Peng Kee, Senior Minister of State for Law for the Deputy Prime Minister and Minister for Law,

“Criminal Procedure Code and Probation of Offenders Act (Review)”, Singapore Parliamentary Report, Vol.83, Sitting No. 9,
Start Col: 1328; End Col: 1331, 27 August 2007.
27 Public Consultation on Criminal Procedure Code Bill, 2009 http://notesapp.internet.gov.sg/__48256DF20015A167.nsf/
LookupContentDocsByKey/GOVI-7M6ETJ?OpenDocument

223

RESOURCE MATERIAL SERIES No.79

1. Mandatory Treatment Orders
Tto allow the Courts to order an offender to undergo psychiatric treatment in lieu of imprisonment. No
such power exists currently.
2. Short Detention Orders (SDO)
To give first time low-risk offenders a short experience (about one week) of detention. The SDO isless stigmatizing than imprisonment and limiting the detention period will prevent contamination. More
importantly, the SDO will not dislodge the offender from his family and job. At the same time the “clang of
the prison gates” helps deter reoffending.
3. Day Reporting Orders (DRO)
To require an offender to report to a Reporting Centre on a regular basis and be electronically tagged, if
necessary. This imposes some discipline and aids in rehabilitation as the offender’s progress is monitored
closely. It can be used very effectively in combination with an SDO. Other countries have used such orders
to positive effect.
4. Community Work Orders (COMWO)
Modelled after the “Corrective Work Order” for litterers, to allow for a wider range of offences and types
of work to be mandated. The type of community work should have some nexus to the offence committed.
The proposed maximum length of the COMWO is up to 40 hours.
5. Expanded Community Service Orders (CSO)
To allow offenders aged 16 and above to make reparation to the community while being punished fortheir misdeeds. This will require tying up with Voluntary Welfare Organizations which can put the offenders’service to good use. The proposed length of the CSO is 40 to 240 hours.
6. Expanded Conditional Discharge
To allow the Courts to specify conditions such as participation in programmes or an MTO as arequirement. The maximum term for a conditional discharge is proposed to be extended from the current 12
months to 24 months to allow sufficient time for participation in programmes.
The proposals reflect the intention to enhance the present approach of using community-based
rehabilitation options by introducing greater flexibility and allowing more graduated sentencing options forminor offences. Offenders can be imprisoned for short terms yet be adequately punished without disruption
to family life or loss of job.

D. Two Years On: The Cases dealt with Thus Far
Please refer Annex B.
IV. BEYOND THE COMMUNITY COURT
A. The Singapore Prison Service: Complementing the Objectives of the Modern Approach
1.	Integral to the success of reform is the criminal justice system, the chief components of which
are the police, the prosecution, the courts and the correctional agencies.28 Prison is by far themost important component in the system towards achieving the objectives of prevention andrehabilitation since it is the biggest correctional agency and the most direct agency which enforces
the sanctions imposed by the courts.
2.	Rehabilitation was recognized as equally significant as punishment and correction as early as 1895
by the very people who created prisons – the British. In 1895, the Gladstone Committee was formed
to survey the effectiveness of prisons. Unsurprisingly, it found that a prison system created solely
for the purpose of punishment reduces neither crime nor recidivism. In fact, it only “made forthe deterioration and degradation of the prisoners and their eventual release into society neither
28 K.V Veloo, Rehabilitation of Offenders in Singapore: Volume 1 (Department of Social Work and Psychology, Faculty of Arts

and Social Sciences, National University of Singapore, 2004) at p.10.

224

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

deterred nor reformed, but brutalized and embittered”.29
3.	Since its institutionalization in 1946, the Singapore prison system has evolved progressively froma basic facility adopting chiefly Victorian punitive methods into one providing a comprehensive
rehabilitation service which can “stand proudly with some of the better [prisons] in other parts of
the world”.30 An overview of the rehabilitation process in diagram 1 reveals a rigorous programme
put in place for the offender at every stage from the very moment of his or her admission to theperiod after his or her release.
DIAGRAM 1
Singapore Prison Service’s Rehabilitation Process31
In-care: Admission
Upon entering the prison system, inmates are classified according to their security risk andrehabilitation needs. A customized treatment plan, the Personal Route Map (PRM), will becharted according to the inmate’s needs. The PRM records and monitors the programmes thatthe inmate goes through during his or her incarceration.

In-care: Deterrence
The Deterrence Phase will provide inmates with the time to reflect on their past actions. To
assist them in adapting to life in prison, they will undergo the Core Skills Programme. There arealso religious services provided by volunteers.
In-care: Treatment
During the Treatment Phase, the inmate is allocated programmes (work/education/vocational
training, Specialized Treatment Programmes) according to his or her needs identified in the PRM.
Programme allocation is based on programmed availability and priority.
In-care: Pre-release
In the Pre-Release Phase, inmates undergo programmes that will prepare and equip themwith skills for smoother reintegration into the community upon their release. Prior to release,
aftercare arrangements will be made for inmates who require assistance.
Halfway care
In order to achieve our aim to steer our inmates towards being responsible citizens upon release,
we require the support of families and the community in assisting inmates’ reintegration into
society. Community Based Programmes were developed and implemented to garner community
support for the successful reintegration of inmates into society. Halfway Care is where we willadminister the various Community Based Programmes to eligible inmates.
Aftercare
The Aftercare Phase starts from the release of the inmates from the Singapore Prison Service’s
custody. Necessary follow-up is carried out by the relevant aftercare agencies.

29 The Treatment of Offenders in Britain , Central Office of Information Reference Pamphlet, London, (Her Majesty’s

Stationery Office, 1960) at p.5.
30 Foreword to Rehabilitation of Offenders in Singapore: Volume 2 , K.V Veloo, (Department of Social Work and Psychology,
Faculty of Arts and Social Sciences, National University of Singapore, 2004) at p.3.
31 Singapore Prison Service, Rehabilitation Process, http://www.prisons.gov.sg/restart.html

225

RESOURCE MATERIAL SERIES No.79

4.	The contemporary system is not meant to make life any easier for the offender than traditional
methods which only focused on the punitive aspects. Rather, it is a sophisticated system which not
only serves to reduce crime and recidivism but also to deliver justice to the offenders by treatingthem not as criminals but worthy individuals capable of having better lives.
5.	A cursory examination of the prison’s programmes will reveal that the underlying objectives
complement that of the Community Court and the Tokyo Rules, that is, to promote among offenders
a sense of responsibility towards society and encourage greater community involvement.
6.	Brief Profile of Singapore Prison Service’s Schemes and Programmes.

(i) Education
It is undisputed that a substantial part of the prison population is made up of offenders from the lower
socio-economic strata32 and are sometimes led into crime because of their circumstances. In line withrehabilitation objectives, further education is offered to the offenders with a view to increasing opportunities
and creates a new pathway for them. This way, the offender’s ability to reintegrate into the community isenhanced, which in turn should keep them from lapsing into their old ways and returning to prison. Hence,
the Singapore Prison Service has been keenly investing in education.
Programmes available in prison are diverse: formal academic courses - GCE ‘N’, ‘O’ and ‘A’ levels, vocationalcourses, e.g. computer literacy and technology courses, enrichment activities e.g. choir, drama, etc., religious
and moral education, social skills courses, family-focussed courses and community reintegration courses.
To accelerate and enhance inmates’ literacy level, the Literacy Education Accelerated Programme(LEAP) was implemented in April 2004. The following table 33 shows a consistent enthusiasm inparticipation thus far.
Educational
levels/course

Apr 2004 to
Dec 2004

Jan 2005 to
Dec 2005

Jan 2006 to
Dec 2006

Jan 2007 to
Dec 2007

Jan 2008 to
Dec 2008

Basic Literacy Courses

NA

650

983

1366

585

BEST

45

402

185

178

79

GE

531

995

462

145

87

GCE N

126

160

171

147

117

GCE O

93

135

154

131

127

GCE A

33

33

33

34

22

Total

828

2375

1988

2001

1017

(ii) WorkWork is an important, if not the most important, component in the rehabilitative process for offenders.34
It instils discipline, responsibility and work ethics which will help them rejoin the workforce and reintegrate
into the community upon release. Through the Singapore Corporation of Rehabilitative Enterprises(SCORE), offenders receive a variety of on-the-job training based on their interests. Offenders typicallyreceive vocational training in the areas of electronics, food preparation, cleaning, etc.
In fact, some of the workshops within the prisons are leased to and run by private firms who workwith SCORE35 e.g. “Connect Centre”, a call centre operating in Changi Women’s Prison since 2005 which
32 Chief Justice Chan Sek Keong, op cit n.5 above.
33 Courtesy of Singapore Prison Service.

34 Singapore Prison Service, Rehabilitation Process, http://www.prisons.gov.sg/restart.html
35 http://www.score.gov.sg/Industrial%20Space%20Leasing.html

226

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

employs about 40 inmates.36
The Prison Service continues with the offender’s work programme even after his or her release.
Under the ’Place and Train’ Scheme, industries which require manpower support and are keen to hire
ex-offenders are identified so that offenders upon their release will be able to find employment. The Prison
Service together with SCORE has engaged companies such as NTUC, NParks and Building & Construction
Association. Another scheme which provides aftercare support in relation to work is the ‘Prepare and Place’
Scheme which is essentially a job fair. All these measures are aimed at facilitating the offender’s integration
with the community after his or her release.

(iii) Early Release(a) Home Detention Scheme
Another measure which involves the community is the Home Detention Scheme (HD). Offenders on thisscheme would be less likely to find themselves coming back to the community as an alienated individual.
Under the HD Scheme, which was implemented in May 2000, offenders who are about to be released andidentified as suitable will be released early to be detained at home and will be monitored through electronictagging. The offenders are to abide by the curfew hours stipulated in the HD Order. They will be able tocommute to work or further their studies during the period that they serve out their sentence at home.
Offenders convicted of serious and violent crimes are not released on home detention.37 Maximum
placement on the scheme is 12 months and an offender has to be sentenced to a minimum of four weeks’imprisonment to be eligible. Eligibility also depends on an offender’s progress and response to rehabilitationand level of family support.
(b) Completion & Recidivism Rates
Since 2000, a total of 11,534 inmates have been placed on the HD scheme and as of 2008, 10,995 inmates
had successfully completed the programme. As can be seen from the following table,38 recidivism rates havesteadily fallen among offenders as compared with the general population. Thus, the scheme has been lauded
as an example of the success of the sound and practical principles of our penal system, which advocatesrehabilitation and reintegration.39
Recidivism rates of HD inmates who have completed the programme
HD inmates who have completed the programme
2001 cohort

3.8%

General population
35.3%

2002 cohort

6.1%

31.2%

2003 cohort

10.8%

24.9%

2004 cohort

11.3%

23.7%

2005 cohort

10.3%

24.2%

(iv) Work Release Scheme
The Work Release Scheme (WRS) allows an offender to serve the last months of his sentence in awork release camp or halfway house under supervised conditions. Offenders who lack family support are
most suited for this programme. Under this programme, inmates are closely guided by staff at the camp or
halfway house. The same objectives adopted by the work programmes in the prison (instilling discipline,
responsibility and work ethics which will help offenders rejoin the workforce and reintegrate into thecommunity upon release) also apply in WRS.
36 http://www.connectcentre.com.sg/security/who.htm

37 See Schedule to the Prisons Act for the offences for which a person has been convicted will not qualify for home detention.
38 Courtesy of Singapore Prison Service.
39 K Shanmugam, op. cit. n.4 above.

227

RESOURCE MATERIAL SERIES No.79(a) Completion Rates
A total of 3,779 inmates have been emplaced since 2000 and as of 2008, 3,099 inmates had successfullycompleted the programme. As can be seen from the following table, 40 recidivism rates have fallen
significantly among offenders on the scheme since its inception.
Recidivism rates of WRS inmates who have completed the programme
WRS inmates who have completed theGeneral population
programme
2002 cohort
13.3%
31.2%
2003 cohort
22.7%
24.9%
2004 cohort
19.0%
23.7%
2005 cohort
18.9%
24.2%

B. Raising Awareness: The Yellow Ribbon Project
The efforts by the Community Court and the Prison Service cannot exist in a vacuum. Successful
rehabilitation of offenders and ex-offenders “must be accompanied by a progressive societal attitude
towards ex-offenders”.41 In 2004, the Yellow Ribbon Project was launched to raise awareness of the stigma
faced by ex-offenders and to educate the public to show compassion to them. Efforts to raise awarenessinclude “Wear A Yellow Ribbon Day”, concerts, conferences, exhibitions, etc. The widely successful project
has received accolades from international experts and a very honourable mention at the 2007 United
Nations Grand Award.42 It continues to garner greater acceptance of ex-offenders by the community43 andcontributes to the development and implementation of reintegration programmes for ex-offenders.
V. CONCLUSION
Experience has shown that the conventional methods of imposing custodial sentences and fines with only
considerations of retribution, deterrence and prevention are not effective in the long run. They also do notsatisfactorily deal with crimes which have arisen out of changing social trends. A criminal justice systemworthy of public confidence must respond to these needs. Singapore has adapted accordingly as reflectedby the efforts of the Community Court and the Prison Service. Thus far, the Community Court’s holistic
approach towards its treatment of offenders has yielded positive results and has been well received by thecommunity. The modern approach of combining rehabilitation and restorative justice with the traditional
principles of sentencing is set to gain greater use with the likely increase in sentencing options. With that, a
low crime rate can be achieved while maintaining custodial sentences as a last resort.

40 Courtesy of Singapore Prison Service.

41 Chief Justice Chan Sek Keong, op.cit. n.5 above.
42 K Shanmugam, op.cit. n.4 above.

43 http://www.yellowribbon.org.sg/pages/conference_2008.html

228THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

ANNEX AI. PP v JOHN ONG GEOK YEOWThe offender was convicted on one count of voluntarily causing hurt to a public officer with the intentionof deterring the latter from discharging his duty. In the course of committing the offence, John landed
several blows to the body of the police officer.
In sentencing the offender to imprisonment for a period of two months with the added condition that heundergo police supervision for 12 months after the expiration of the sentence, the Court took into accountthe report from the Institute of Mental Health (IMH). The IMH report stated that John suffered fromschizophrenia. Further, the report also indicated that John was likely to have been in a state of acute relapse
during the time of the offence.
The sentence imposed by the Court was arrived at after balancing the need for deterrence and theimportance of rehabilitation in this case. Incarceration of John – at least for a short period – was required todrive home the message that attacking a public officer constitutes a serious offence. Yet, the short period ofincarceration, together with the imposition of police supervision, demonstrates the Court’s focus upon theimportance of rehabilitating the root cause of John’s offence.

II. PP v YEO GEOK HUAY
Mdm Yeo committed the offence of voluntarily causing hurt to a police officer with the intention ofdeterring the officer from discharging his duty. At the time of the offence, the police officer was responding
to a complaint from Mdm Yeo’s neighbour that the music from her home was too loud. Upon arrival at Mdm
Yeo’s unit, the police officer was charged upon by Mdm Yeo and punched in the head and body.
The Court had called for a report from the IMH prior to sentencing. The report reflected Mdm Yeo’s
psychiatric history dating back to 2003. The psychiatrist’s diagnosis stated that the offender suffered from
Major Depressive Disorder: a condition which causes heightened levels of aggression. Noting that Mdm
Yeo’s offences were all inextricably linked to her depressed mood, the Court recommended that she undergo
medical treatment upon her release from six weeks’ imprisonment.
Just like in the preceding case involving John’s assault on a public officer, Mdm Yeo was similarly
sentenced to a short period of imprisonment. Considerations of deterrence aside, the focus upon rehabilitation
is evident by the Court’s recommendation that she undergo medical treatment upon her release.

III. PP v CHEONG AH SIEW
Mdm Cheong was convicted of committing a rash act so as to endanger the personal safety of others. Her
actions in throwing several items out of her ninth storey flat constituted the criminal offence in question.
The IMH report called for by the Court diagnosed Mdm Cheong as having a long history of
Schizoaffective Disorder. One characteristic of this disorder is to cause sufferers to act rashly andimpulsively.
The judge ordered conditional discharge for 12 months. In his judgment, the district judge stated thatthe existence of a serious mental disorder is a relevant factor in determining the type of sentence which an
offender receives. His Honor also stated that in the process of coming to his decision, he had considered theimpact of the disorder upon the offender. Further, he was of the view that rehabilitation – through psychiatrictreatment – was the predominant sentencing consideration in this case as it was fundamental to preventing
Mdm Cheong from committing offences in the future.

229

RESOURCE MATERIAL SERIES No.79

IV. PP v HONG CHEE MENG
Mr. Hong was convicted of the same offence as Mdm Cheong. He was arrested for throwing several items
out of the kitchen window of the HDB flat. He had a history of previous admissions into IMH, and had been
diagnosed as a danger to the public due to alcohol induced brain damage. Prior to sentencing, the Court called
for an IMH report. The diagnosis of Mr. Hong stated that alcohol intoxication and brain damage caused him
to have impaired judgment and loss of impulse control during the time of the offence. The report also statedthat in the absence of alcohol consumption, it was likely that he would not have committed the offence.
The judge granted Mr. Hong conditional discharge for a period of 12 months in view of his potential forrehabilitation. Further, his parents were bound in the sum of $1,000 to ensure his good behaviour throughout
the duration of those 12 months.

V. PP v MOHAMAD SANI MD SAID
The accused person pleaded guilty to one count of committing a rash act so as to endanger the personalsafety of others. He had thrown several items, including a BMX bicycle metal frame, from the 4th floor of a
HDB block.
The IMH report called for by the Court stated that he had been suffering from Schizophrenia since 1984,
and that his IQ level of 67 rendered him mildly retarded. Unable to work, he was a vagrant sleeping in a
HDB corridor and begging for food. The psychiatrist’s recommendation was that the accused be placed in a
Welfare Home.
The judge ordered conditional discharge for 12 months and for the accused’s aunt to execute a bondamounting to $1,000. The Court opined that a custodial sentence would fail to achieve the aims of generaldeterrence. Further, the judge also stated that punishment or probation would be inappropriate in this caseas the accused did not have the financial means to support himself, much less pay a fine. Taking into accountthe accused person’s medical condition, and the need for psychiatric treatment, the judge consulted with the
IMH psychiatrist to work out a treatment plan for the accused. In relation to his destitution, liaison with the
MCYS resulted in a programme under which the accused person would be admitted into a Welfare Home forsix months while he underwent rehabilitative and vocational training.
From the outcome of the sentencing process, it is evident that the main objective of the Court in thismatter was to ensure that the accused gains access to the services necessary for him to be a useful citizen
integrated into society.

VI. PP v CHONG KUET CHIEN
The accused person pleaded guilty to using criminal force on the victim with the intention to outrage hermodesty. He had used his right index finger to touch the victim’s thigh.
The IMH report reflected that the accused suffered from schizophrenia, and was in a state of relapse
during the time of the offence. In the psychiatrist’s opinion, the illness probably contributed to the accused’s
criminal conduct during the time of the offence. The psychiatrist also recommended that the court mandate
long term treatment of the illness as part of the sentence imposed.
Having considered the report from the IMH, the judge sentenced Mr. Chong to five weeks’ imprisonment
and police supervision for 12 months following the expiration of the term of imprisonment. On top of which,the accused agreed to reside at the Helping Hand Halfway House under the supervision of a social worker
by the name of Freddie Ho. Further, he was to adhere strictly to a treatment plan prescribed by Dr. Kenneth
Koh of the IMH.
From the sentence imposed, it is evident that retribution for the suffering of the victim – in the form of acustodial sentence – was balanced by the aims of reformation of Mr. Chong through psychiatric treatment.

230

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

VII. PP v MUHAMMAD FAUZI BIN MASOOD
The accused was 17. He committed the offence of housebreaking when he and an accomplice decided tolook into flats for any items which could be stolen. Fauzi chanced upon a hand phone near the window and hetook the phone by sliding his hand through the open window. Despite his youth, the accused had previously
committed several offences including snatch theft and housebreaking by night to commit theft. For those
offences, he had been ordered to reside in the Muhammadiyah Welfare Home for three years. It must be
noted that the offence in question was committed when he had absconded from the Home.
The MCYS was requested to provide a psychological report on the accused. Their assessment was thatthe accused was within the mild intellectual functioning range. Given his condition, he was susceptible tonegative influence from his peers. Other than his intellectual condition, lack of parental supervision andmanagement, as well as lack of personal responsibility, contributed to his risk of engaging in future criminal
conduct. The psychologist made several recommendations to alter the course of his future. First, that he
attends offence specific treatment programmes which are tailored to his learning ability. Secondly, it was
pertinent that he be taught peer refusal skills. Finally, in order to ensure greater parental supervision overhim, the accused’s father was asked to attend parenting sessions.
The Court took heed of the recommendations by the MCYS and imposed a sentence of 18 months’
supervised probation. Attached to the probation order were the following conditions: firstly, that the accused
resides at the Muhammadiyah Welfare Home; secondly, he was to remain indoors from 9pm to 6am; thirdly,that he be enrolled in a suitable educational institution and abide by all rules and conditions imposed by
the school and relevant authorities; fourthly, that he be taught peer refusal skills and lastly, that his father
executes a bond of $5,000 to ensure that the accused person’s conduct is in compliance with all conditions of
the probation order.
The sentence aimed to rehabilitate the accused person by ensuring that he was placed in environments
conducive to reformation. Mandating that he reside at the Welfare Home as well as attend an educational
institution not only ensured that he received education in a disciplined environment, it also prevented himfrom being exposed to negative influences. Further, enlisting the help of his father certainly increased
the probability that the accused would have access to greater parental control – which is an indispensible
element in nurturing good behaviour.

VIII. PP v LIM KENG SENG
The accused person was a male aged 62. He pleaded guilty to a charge of being in possession of a knife
without lawful authority or purpose.
The IMH assessed that at the time of the offence, Mr. Lim was suffering from depression. He had beenbrooding over the fact that he had been diagnosed with cancer.
The Court ordered that the accused be given a conditional discharge for 12 months. In light of the needto ensure his good behaviour, the accused person’s son was ordered to execute a bond of $1,000, on top ofwhich the latter also undertook to send his father for treatment for his depression.

231

RESOURCE MATERIAL SERIES No.79

ANNEX B
Parliament No: 11
Session No:
1
Volume No:
85
Sitting No:
7
Sitting Date: 2009-01-19
Section Name: ORAL ANSWERS TO QUESTIONS
Title:
SINGAPORE’S PENAL POLICY (Review)MPs Speaking: Mr Lim Biow Chuan; The Minister for Law (Mr K Shanmugam)

SINGAPORE’S PENAL POLICY(Review)
5. Mr Lim Biow Chuan asked the Minister for Law whether there is any need to review Singapore’s
penal policy in view of the statement in the latest issue of the Law Gazette by the President of the Law
Society of Singapore Mr Michael Hwang that Singapore is sadly lacking a principled and transparent penal
policy.
The Minister for Law (Mr K Shanmugam): Sir, I thank Mr Lim for his question. Mr Hwang, thePresident of the Law Society, in his article in the Law Gazette asserts that detailed statistics on crime andpunishment should be published and that not publishing such statistics has prevented social scientists fromundertaking adequate research on the causes of crime and the effects of current penal policies on prisoners.
And he says that this has resulted in our system being unprincipled, and rigorous regular research with fullaccess to relevant information will help us decide on issues like the effectiveness of capital punishment.
I will deal with each of the three assertions.  
About statistics not being published - this assertion is questionable for two reasons. First, Mr Hwang
does not make clear what data (which would help in penal research) that he is referring to as not having
been published. Second, law enforcement agencies such as the Singapore Police Force and Central Narcotics
Bureau do publish crime and drug offence statistics regularly. Where there is public interest to be served,
additional relevant information is collected and disseminated.
In addition, it should be noted that Home Team departments also undertake qualitative and quantitative
research, often in collaboration with independent researchers, on topics relating to crime, punishment
and criminal behaviour. Further, as a matter of practice, assistance is also given to researchers, including
students, who wish to do serious research and such research has been done. To suggest to that, there
are inadequate published statistics and that that has prevented proper research is therefore quite untenable.
I will now deal with the second of his assertions - has a lack of statistics led to our penal system being
unprincipled?
Since the basis of his assertion - that we do not publish statistics - is itself not clear, this further
conclusion is equally questionable. Further, any objective analysis of our penal system will show that thesystem is based on sound practical philosophy and principles, which have been made clear several times.
While we take a tough stand on crime, we also believe strongly in compassion and rehabilitation. These
principles underpin our approach to:(i) principles of prescribing punishment and sentencing;(ii) treatment and rehabilitation of prisoners when they are in prison; and(iii) reintegration of ex-offenders back into society.
Let me deal with punishment and sentencing. The Government’s approach to prescribing punishments

232

THE 141ST INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

is a matter of public record. During the Second Reading (in 2007) of the amendments to the Penal Code, ourapproach was again restated clearly. In brief summary, these are:(i)	the type and quantum of punishment should provide sufficient flexibility to the Courts to mete out
an appropriate sentence in a particular case;(ii) the prevalence of the offence;(iii) the proportionality of the penalty to an offence, taking into account its seriousness; and(iv) the relativity in punishment between related offences.
On sentencing, our Courts have set out the applicable principles. Our former Chief Justice, Mr Yong
Pung How, had published over 882 judgments during his time on the Bench, several of which relate tocriminal offences. Our current Chief Justice has been equally prolific. Subordinate Court judges publish
Sentencing Practice in the Subordinate Courts , which is a sentencing guide, making accessible thesentencing approach for a wide range of offences. This approach is not based exclusively on either
deterrence or retribution alone. Rather, the approach to sentencing an offender is to consider both these
aspects, and also take into account other considerations such as potential for rehabilitation, suitability of thepunishment for each individual offender and the nature of the offence committed.
Hence, both in prescribing punishments and sentencing offenders, much thought has been given to
how justice can be best secured for each individual offender. The Government is also at present exploring
Community Based Sentencing options, which will further equip our penal framework with the best tools toadvance justice in each particular case.
Let me deal with treatment and rehabilitation of prisoners in prison. As stated earlier, we believe strongly
in rehabilitation and we believe that that process should start even while the sentences are being served.
Thus, during incarceration, inmates who are genuinely willing to change are given education, training andrehabilitative opportunities that will better help them reintegrate into society after their prison sentences.
Our focus on reintegration of ex-offenders back into society continues after the prisoners are released.
The Yellow Ribbon Project (YRP), set up to create awareness on giving second chances to deserving
ex-offenders and generate acceptance of ex-offenders back into the community, has been widely lauded byinternational experts, and has received an honourable mention at the 2007 United Nations Grand Award.
Coupled with the YRP was the setting up of a Yellow Ribbon Fund which contributes to the development andimplementation of reintegration programmes for ex-offenders.
A key measure of the success of our rehabilitation and reintegration programmes is our recidivism rate,
which is now one of the lowest in the world.
Another example of the successful rehabilitation and reintegration programmes for offenders is theHome Detention Scheme. Deserving inmates are released earlier, at the tail-end of their sentences andplaced on electronic monitoring to work or study. Prisoners on Home Detention have lower recidivism rates
compared to the general population.
Thus, far from being unprincipled, our penal philosophy has been carefully thought through and has been
articulated publicly several times. Theoretical arguments on our penal policy, bereft of any reference to these
key aspects in our system, may make for good sound bites. But they do not have any real merit. In evolving
our policies, we take into account the views of parties involved in the administration of justice, including thecourts, law enforcement agencies, civic interest groups, the legal profession, academia and the Law Society.
I will now deal with Mr Hwang’s final assertion relating to capital punishment. His suggestion isthat publication of detailed statistics will lead us to a possibly conclusive answer to the debate on capital
punishment.
The debate on capital punishment, Sir, is not going to be settled on the basis of statistics. Leaving aside
the fact that it is not clear, from what Mr Hwang says, as to what statistics are said to be lacking, I should
point out that all capital punishment cases are matters of public record in Singapore and the media usually233

RESOURCE MATERIAL SERIES No.79

widely covers such cases. Each criminal case heard before a court is also a matter of public record.
On the issue of capital punishment itself, the reality is that there is no universal consensus on suchpunishment, and there is unlikely to be any such consensus, anytime soon. Serious and bitter debate on capital
punishment has raged on in many countries. The philosophical and ideological chasms that separate theproponents and opponents of capital punishment are quite unbridgeable. Both sides marshal powerful arguments.
On an issue like this, the Government has to take a stand. And the Government believes that death
penalty should be retained. A Straits Times survey conducted a few years ago reported that 95% ofSingaporeans supported the retention of the death penalty.
Our firm position on crimes and the considerable benefits of such a stand to our society can be illustrated
by reference to the drug situation. In a region where drug is a very serious problem, Singapore has kept
the problem very much under control and is in fact almost unique in battling it successfully so far. Members
know that in the last 15 years, the drug situation has been getting from bad to worse in many countries, bothin this region, and in the world.
Why have we succeeded so far, when so many others have not? It is because we took a practical, hard
headed approach to the problem and tackled it decisively. In this context, the introduction of the death
penalty for drug trafficking has, we believe, had the deterrent effect. There are no widely prevalent
syndicated drug activities linked to organised crimes in Singapore, in contrast to the hierarchical andorganised drug syndicates and cartels in various countries. As a result of our policies, thousands of young
people have been saved from the drug menace.
Singaporeans appreciate the safe environment here. And the international community has taken note ofour success in maintaining law and order. In 2008, the Institute for Management Development (IMD) World
Competitiveness Yearbook ranked Singapore first in personal security and private property.
Sir, in closing, let me assure Members that our approach to penal policy is both principled and transparent.
And, quite fundamentally, the approach has been shown to work, ensuring the safety and security of our
citizens. We will continue to review our approach and ensure that it remains relevant and effective.

234

139TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’
PAPERSVISITING EXPERTS’ PAPERS

THE IMPROVEMENT OF THE TREATMENT OF OFFENDERSTHROUGH THE ENHANCEMENT OF COMMUNITY-BASEDALTERNATIVES TO INCARCERATION
Boitumelo Makunga*

I. INTRODUCTION
The states of Africa are diverse and multifarious; they are sovereign independent states in their own
right, with differing histories, cultures, traditions, languages and institutions. However, for all their diversity
they do share some commonalities; i.e. the international conventions and agreements to which all or mostof them are party and existence of their respective criminal justice systems. In spite of this, commentators
have pointed out that the concept of prisons is an alien model and a form of punishment unknown to mostsocieties of pre-colonial Africa in dealing with offenders (Moroka 2008, Mujuzi 2008).

II. BOTSWANA’S PRE-COLONIAL JUSTICE SYSTEMIn Botswana the traditional/indigenous criminal system focused on “reclaiming” the offender from thecrime, and the punishment was meant to fit the offence. Moroka points out that at the core of the system wasan obligation to “restore the victim and undo the harm done” without condemning the offender to permanentcriminal being. The author further states that punishment aimed at “taking the offence out of the offenderand not the offender out of society” (4: 2008). The indigenous criminal code was made of two classes:
Crimina in se i.e. murder, rape, theft, robbery etc. and crimina prohibita i.e. hunting outside the hunting
season, starting bush fires, ploughing or harvesting out of season, adultery, disrespect for elders, etc.
Offenders were tried at the main community or Kgotla . The family, immediate clan and the community
at large all had a role to play in dealing with deviant and offensive behaviour that threatened social order.
Their participation in the proceedings was crucial in that the offender was given the opportunity to makerestitution and the victim would be able to request the type of restorative punishment he or she believed
served adequate justice. Moroka maintains that only after several attempts by the community to restore
order by employing corrective action would an offender be banished from the community – this would be alast resort where an offender did not attempt to mend her/his ways (2008). There were no institutionalized
forms of punishment.

III. THE DUAL LEGAL SYSTEM IN BOTSWANA
During the British colonial era, African Customary law and the Roman–Dutch law co-existed. The“received” law was individualistic and was put in-place to govern the colonial settlers. The customary law
governed the indigenous African communities. This co-existence hinged on a “repugnancy clause”, i.e.
for as long as the Customary Law was not an offence to the colonial administration it was allowed to exist.
However, in due course the “received” law became territorial: where the indigenous people broke thesettlers’ rules, they were governed in accordance to the settlers’ laws. This resulted in the Kgosi (chief)losing jurisdiction of most criminal and civil matters; the Kgosi would mainly preside over all family law
matters that involved the indigenous populations or criminal matters between tribesmen. In 1964 the Penal
Code came into existence as the set standard to establish a code of criminal law. Significantly, none of theindigenous communities were consulted regarding its conception; i.e. it was “accordingly imposed.” Onereason for this status quo could have been that Traditional/Customary law was not written. It was encodedin the psyche of the people and passed down by oral tradition. Moroka (2008) asserts that S.10 (8) of the* Alterative Sentencing Intiative/ Wellness Coordinator, Attorney General’s Chambers, Botswana.

235

RESOURCE MATERIAL SERIES No.79

Constitution “drove the last nail” into the dignity of the Customary Law by stating: “No person shall be
convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a
written law: Provided that nothing in this subsection shall prevent a court of record from punishing any
person for contempt of itself notwithstanding that the act or omission constituting the contempt is notdefined in a written law and the penalty therefor is not so prescribed.”
And thus the way was paved for the current dual legal system as it exists at present in Botswana.
In Botswana the Customary Courts are established under an act of Parliament. Customary Law according
to this means: in relation to any particular tribe or tribal community, the customary law of that tribe or tribal
community so far as it is not incompatible with the provisions of any written law or contrary to morality,
humanity or natural justice. Customary courts have powers to sentence people to imprisonment, and in
the exercise of the provision may be guided by the Penal Code of Botswana. Section 18 of the Customary
Courts Act provides for the sentences that may be administered and also provides for imprisonment in S.
23. (Refer to Appendix C). The Customary Courts also impose suspended sentences; impose fines and ordercompensation.
In reference to what has been stated above; it has been asserted that the State became the fundamental
player in prosecuting criminal cases; while the role of the communities dwindled. As communities were
pushed further and further to the periphery, the fight against crime became the responsibility of the police.
Furthermore, di-Kgosi 1 who normally preside over cases in the customary courts had to interpret complex
statutory law in which they had no training.
In administering criminal justice, the Magistrates Courts also sentence people to imprisonment inaccordance with the provisions of S. 60 of the Magistrates Courts Act. Sentences may be suspended
according to the discretion of the presiding magistrate. The High Court of Botswana has appellate
jurisdiction from any decision of the Magistrate Court and Customary Courts in Botswana; and has power
to confirm or amend or set aside any judgment, decision or order and also to impose such punishment
whether more or less severe than the court of the first instance. In terms of the law the High Court also
has jurisdiction in certain crimes, such as treason and murder, and may impose appropriate sentences
accordingly. The Court of Appeal is also established under the provisions of Cap. 04:01 of the Laws of the
Republic of Botswana. In terms of S. 7 of the Act, the Court of Appeal shall have, in addition to any otherpower, authority or jurisdiction conferred by the Act or the Constitution, the power and jurisdiction vested in
the High Court. On appeal against conviction the Court of Appeal may set aside a conviction on grounds that
it is unreasonable or may quash the conviction (S. 13).
The Prisons Service is the custodian of all the offenders sent by the above-mentioned courts.

IV. THE PROBLEMS OF IMPRISONMENT
The aims of incarceration are retribution, deterrence, protection of the society (i.e. by incarceration), andrehabilitation of the offender. In Botswana, imprisonment is a form of punishment that derives its legitimacy
from the Constitution. Section 5 (1) states: “No person shall be deprived of his or her personal liberties save
as may be authorized by law in any of the following cases, that is to say (a ) in execution of the sentence ororder of a court, whether established for Botswana or some other country, in respect of a criminal offence of
which he or she has been convicted”.
However, imprisonment as a preferred method of punishment has a number of disadvantages that havean effect on the offender, family, community and national policy. These disadvantages include the following:•

Stigmatization and humiliation of the offender; resulting in prospects that the offender may neverregain her or his self-respect and dignity within the community.

•

Creation of an environment where offenders “forget” those they have harmed and regard themselves
as victims; this in turn creates a sense of bitterness and this builds a culture of vengeance.

1 Kgosi means Chief/ Community Tribal Leader. Di-Kgosi is the plural of Kgosi .

236

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS•

The desire to avenge often leads to further crime, after the offender has been released.

•

Since the majority of offenders are adults, imprisonment robs families of the presence and support ofkey family members and often leaves children without adequate support and parental guidance.

•

Imprisonment never takes the interests and the concerns of the offender into consideration.

•

Lack of juvenile prison facilities in Botswana results in young people being incarcerated witholder “hardened” offenders who pass on their wilful and unruly behaviour to these young andimpressionable people. Thus the cycle of crime continues.

•

Maintaining offenders in prisons is costly and diverts valuable resources that can be used for othernational development projects.

In essence, imprisonment appears not to solve problems, it seems to cause more problems. It fails toachieve deterrence and reform.

V. THE BOTSWANA PRISONS ACT – CAP 21:03
Under the provisions of S.97 of the Prisons Act, courts may order extra-mural labour for offenders. With
consent, the offender may be employed under the immediate control and supervision of the public authority
on public work or service outside prison. Officers-in-charge have the ultimate control of offenders doing
extra-mural labour. The Commissioner of Prisons or an official visitor may also order extra-mural labourfor offenders. The disadvantage of ordering extra-mural labour for offenders in Botswana is that it is only
available to offenders who have been sentenced to a term of imprisonment not exceeding 12 months. It
would be of great assistance to alternative sentencing if the condition of sentencing exceeds 12 months toinclude a longer period, depending on the gravity of the offence.

VI. JUVENILE JUSTICE SYSTEMThe Juvenile Courts are governed by Sections 22 to 33 of the Children’s Act – Cap 28: 04. A magistrate’s
court or customary court may sit for the purpose of hearing a charge against a juvenile (S. 22 (1) a). Section
22 (2) of the Act further states that: “A juvenile court shall not have jurisdiction to hear and determine any
charge against any person other than those persons who are between the ages of seven years and 18 years”.
Section 28 of the Act provides that where a child or juvenile is found guilty of an offence the following
maybe considered:
(a)
(b)
(c)
(d)

dismissing the charge;
discharging the offender on his entering into a recognizance;
placing the offender on probation for a period of not less than six months or more than three years;
sending the offender to a school of industries for a period not exceeding three years or until heattains the age of 21 years; or(e) ordering the parent or guardian of the offender to pay a fine, damages or costs.
The Minister of Labour and Home Affairs may establish and maintain shelters for juveniles who havebeen charged with offences and are waiting to appear before the Juvenile Court. Currently there is a schoolof Industry that has the capacity to shelter 100 male juvenile offenders. However, there are no facilities forjuvenile female offenders, who are currently sheltered with the general female adult prison population.

237

RESOURCE MATERIAL SERIES No.79

A. Current Types of Introduced Community-Based Alternatives to Incarceration in Botswana
TYPE OFSENTENCE

DESCRIPTIONADVANTAGESDISADVANTAGESCOMMENTS

Extra Mural
LabourSupervised unpaid public
work/service carried onoutside the prison for
not more than 8 hours
by an offender whose
sentence is not more than
12 months. Or where an
offender has to pay a finenot exceeding P800.

* The offender canpartake in thedecision of whether
or not to consent to
extra-mural labour.

* The final decision is taken
following an assessmentby the parole board – (thedecision can be subjective).

See Prisons Act
Cap 21:03 S.97 –104.

Caning with a caneapproved by the court.
The number of caning
strokes do not exceed 12
and not more than six for
an offender under the ageof 18.
The offender may berequested to pay a finein lieu of imprisonment
at the discretion of thecourt.

The offender re-pays
debt to society.

CorporalPunishment

Fines

Discharge
without
punishment

Discharged
into thecare of an
appointed
custodian238* Offender re-pays
debt to society.

This can be combinedwith compensation
to the injured partyor restitution of
the injured party’s
stolen property.

* Prison officers may be
short-staffed with regard
to supervising offenders
sentenced to extra murallabour.
* Only male offenders
under the age of 40 aresentenced in this manner.

See Penal CodeCap 08:01 S.28
and The Criminal
Procedures &* It is agonizing, both
Evidence Act
physically and emotionally. Cap 08:02 - S.305

The offender may not beable to pay the requested
amount of money to pay
the fine; due to financial
constraints. Where theoffender is of a highsocio-economic status
he or she may be underthe mistaken believe thathe or she can manipulate
the justice system to his
or her advantage.
The offender’s charges are The offender is given The offender may repeat
dismissed at the discretion the opportunity
the offence especiallyof the court following
to redeem him or
where his or her
the consideration of theherself.
environment contributed
character, antecedents,
to his or her offence.
age, health or mental
condition of the accused;or the trivial nature of theoffence or the extenuating
circumstances inwhich the offence wascommitted.
An offender who is
The offender
The offender may repeat
under the age of 18 isreceives support
the offence especiallyreleased into the care
& guidance from
where his or herof a designated suitable
those close to him
environment contributed
person for a specificor her; and can beto his or her offence.
period. This may becounselled formallycombined with corporalby the relevant
punishment.
professionals.

See Penal CodeCap 08:01 S.29
and The Criminal
Procedures &Evidence Act
Cap 08:02 - S.316& S.318

See Penal CodeCap 08:01 S.32

See The Criminal
Procedures &Evidence Act
Cap 08:02 - S.304

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

VII. AUTHORITIES AND AGENCIES WITH COMPETENCEFOR INVESTIGATION OF OFFENDERS
A. The Botswana Police Service
The Botswana Police Service is established by an Act of Parliament – the Police Act Cap 21:01 of 1979.
With regard to the general powers and duties of a police officer, S. 6(1) and S. 16(5) of the Police Act states
that: “It shall be the duty of every police officer at all times to protect life and property, prevent and detect
crime, repress internal disturbance, maintain security and public tranquillity, apprehend offenders, bring
offenders to justice, enforce all written laws with which the Service is directly charged and generally
maintain the peace.”
The main challenge facing the Botswana Police Service is the shortage of qualified personnel to interpretthe complex statutory law; this can result in poor quality investigations.

B. The Botswana Local Police
The Botswana Local Police Service is also established by an Act of Parliament – the Local Police Act
Cap 21:04 of 1972. With regard to the general powers and duties of a local police officer, S. 8(c) of the Local
Police Act states that a Local Police Officer shall: “preserve the public peace, prevent the commission of
offences and apprehend all persons in respect of whom he holds a valid warrant of arrest .”Furthermore, S.9 states that a Local Police Officer: “shall at all times co-operate with the Botswana Police
Force and shall, if the President so directs in writing, be subject to the Orders of the Commissioner of Police.”This gives Local Police the power to in effect operate in the same manner as Botswana Police Officers.
However, the main challenge facing the Botswana Local Police Service is the shortage of qualified personnel
who are able to interpret the complex statutory law; this can result in poor quality investigations.

C. The Directorate of Corruption and Economic Crime
The Directorate of Corruption and Economic Crime (DCEC) is established by an Act of Parliament – theCorruption and Economic Crime Cap 08:05 of 1994. With regard to the general powers of the Directorate,
S.6 (a. – d.):The functions of the Directorate shall be(a) to receive and investigate any complaints alleging corruption in any public body;(b) to investigate any alleged or suspected offences under this Act, or any other offence disclosed during
such an investigation;(c) to investigate any alleged or suspected contravention of any of the provisions of the fiscal andrevenue laws of the country;(d) to investigate any conduct of any person, which in the opinion of the Director, may be connectedwith or conducive to corruption
The main challenge facing the DCEC is potential for corruption within the organization; this can result inpoor quality investigations.

D. Customs and Immigration
The Customs sector investigates issues of customs, i.e. the regulation of exportation and importation of
goods. Immigration investigates issues pertaining to the regulation of the movement of individuals crossing
Botswana’s borders.
VIII. AUTHORITIES AND AGENCIES THAT HAVE COMPETENCE FOR
THE PROSECUTION OF OFFENDERSThe Directorate of Public Prosecutions (DPP) is headed by the Director of Public Prosecutions appointed
in terms of Section 51A of the Constitution. Section 51A (3 - 4) states that: “The Director of Public
Prosecutions shall have power in any case in which he or she considers it desirable -(a) to institute andundertake criminal proceedings against any person before any court (other than a court martial) in respect of239

RESOURCE MATERIAL SERIES No.79

any offence alleged to have been committed by that person; (b) to take over and continue any such criminal
proceedings that have been instituted or undertaken by any other person or authority; and (c) to discontinue,
at any stage before judgment is delivered, any such criminal proceedings instituted or undertaken by himself
or herself or any other person or authority.”
In relation to this, Section 51A (4) states that: “The powers of the Director of Public Prosecutions undersubsection (3) may be exercised by him or her in person or by officers subordinate to him or her acting inaccordance with his or her general or special authority.”
The primary mandate of DPP is the prosecution of criminal cases before all courts of the land andcriminal applications and appeals arising from criminal litigation.
Prior to 1 October 2005, there was no Directorate of Public Prosecutions and prosecutorial functions
were vested squarely and exclusively in the Attorney General. The 1 October 2005 saw the coming into
effect of the Constitution (Amendment) Act No. 9 of 2005, which provided for the appointment of a Directorof Public Prosecutions with an entrenched tenure of office and constitutional protection.
Parallel to the Constitution (Amendment) Act came into effect the Constitution (Amendment)
Consequential Provisions Act No: 14 of 2005, covering at least 30 statutes dealing with criminal prosecution.
In terms of the Constitution Amendment Act, in carrying out his or her professional mandate, the Directorof Public Prosecutions shall not be under the control or direction of any person, a position consistent withinternational best practice.

A. Primary Statutes
The primary penal statutes used by the Directorate in criminal prosecution are the Penal Code Cap 8:01
of 1964 and the Criminal Procedure and Evidence Act Cap 8:02 of 1939, which give guidance on generalmatters of procedure in criminal litigation. However, the prosecutorial mandate extends broadly to all suchother legislation as creates penal offences, except where statute provides for trial by court martial. In theprosecution of the Director’s mandate the Director is constitutionally obligated to consult with the Attorney
General on matters considered by the latter to be of national importance. The final decision on whom andwhether or not to prosecute remains that of the DPP.
However the Director remains under the administrative supervision of the Attorney General (AG) for
institutional accountability.

IX. AUTHORITIES AND AGENCIES THAT HAVE COMPETENCE FOR
THE ADJUDICATION OF OFFENDERS
Please refer to Part III “THE DUAL LEGAL SYSTEM IN BOTSWANA” (above).

X. TYPES OF TREATMENTS DESIGNATED AND IMPLEMENTED FOR
OFFENDERS IN BOTSWANA
The Penal Code came into existence in 1964; it is an Act to establish the code of criminal law. Under
Ss. 25 – 33, the Penal Code defines2 different punishments as follows: “The following punishments may
be inflicted by a court - (a) Death; (b) Imprisonment; (c) Corporal punishment; (d) Fine; (e) Forfeiture; (f)Finding security to keep the peace and be of good behaviour or to come up for judgment; (g) Any otherpunishment provided by this Code or by any other law.”

XI. CHALLENGES WITHIN THE CRIMINAL JUSTICE SYSTEM IN BOTSWANA
As part of the preparation of compiling this report I interviewed colleagues and people who either
worked directly with offenders or within the criminal justice sector. The objective was to obtain their
2 Please refer to Appendix A for a description of the above-mentioned punishments in accordance of the Penal Code Ss. 26 -33.

Please refer to Appendix B for a description of the above-mentioned punishments in accordance of the criminal procedures andEvidence Act Ss. 298 -315.

240

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

views on the current system and to determine their appreciation of community-based alternatives toimprisonment. These officers included:
•
•
•
•
•
•

Senior Prison Officers
A Senior Police Officer
A Chief Magistrate
A Kgosi who presides in the Customary Courts
The Deputy Director of Tribal Administration
The Principal of the Ikago School of Industry (who is a professional social worker).

A. Senior Prison Officers
The Prison Officers presented a picture of an effective but under-staffed and under-resourced
environment.
•

Emphasis was on rehabilitation of offenders. Through the assistance of, and assessment by, theEmployment Allocation Committee (EAC) comprising of a team Rehabilitation Officers, offenders
are offered employment and skills development while incarcerated. They are employed in areasof agriculture and industry (e.g. welding). However, only a certain number of offenders can be
employed because there are more offenders than there are jobs; and the waiting list is long.

•

All offenders are treated humanely in accordance with the Prisons Act – Cap 21:03; even where
offenders are problematic they are still treated humanely.

•

The most familiar alternative to incarceration facilitated by the prison system is extra-mural labour.
The offender is supervised by prison officials and is provided with meals in the form of a dried-foodration on a weekly basis. The extra-mural labour is ordered either by the Commissioner of Prisons, amagistrate or any of the courts.

Nelson (2008) asserts that the prison system environment worldwide is isolated and is removed frompublic attention. This suggests that the environment that prisons operate in, and the challenges faced byprison administrators, are both misunderstood. The author states that:“The role that they perform is neither obvious nor easily explained to the political leaders and thegeneral public …. prisons are most often ignored in discussions of mainstream legal and criminal justicematters and reform initiatives; furthermore, they are not considered a priority for funding in comparison
to other social and economic challenges that governments face. The absence of increased funding forother criminal justice reforms, such as harsher and longer prison terms for certain offences and significant
limitations on the use of non-custodial measures, have significantly impacted on the number of persons
incarcerated. While the number of offenders continues to grow in prisons; prison administrators are simply
expected to manage.” (Power point pres. 2008)
This observation summarizes my contact with the Botswana Prison Officers; on explaining the purpose
for the exercise I was conducting, they were very polite and really wanted to assist but I felt that they
withheld vital information. They stated that they were bound by confidentiality; despite that fact I explainedthat I would treat all information as confidential and would not disclose names or locations. This poses a
serious problem because I found out that even attorneys or members of the general populace relied onhearsay from the media, or NGOs who monitor incarcerated offenders’ welfare. For example, AIDS NGOs
have pointed out that the issue of HIV and AIDS affects the prison population as much as it does the generalpublic; as a result, male offenders should be provided with HIV/AIDS prevention education and condoms
because it transpires that male prisoners have unprotected sex with other men (MSM) and this can only
exacerbate the spread of HIV and AIDS. This was an issue that is not discussed openly by prison officials.

B. Senior Police Officer
The police officer (who was also a prosecutor) was aware of the current alternatives to imprisonment in
Botswana, but felt that the stumbling block within the criminal justice system was the “mandatory minimum
sentence” which required sentencing officers to consider incarceration as a first option. Furthermore, hebelieved that the victim was never adequately considered, focus was mainly on the offender. He believed

241

RESOURCE MATERIAL SERIES No.79

that the answer for a solution lay in “a robust public education [campaign ] on non-imprisonment alternatives
to sentencing.”

C. Chief Magistrate
The Chief Magistrate asserts that: crime violates the relationship between the offender, the victim, hisor her next of kin and the greater community. It is these relationships that need to be mended if order andpeace are to prevail in any society. The answer lies in restorative justice; therefore:••••

There is urgent need to review our laws to make our criminal justice system less offender-focusedand more victim-focused;
There is also need to involve the greater community more directly in the criminal process;A reparative model of criminal justice is needed which focuses on reparation to the victim by theoffender;There is need to urgently review the role of customary courts to make them part of the solution andnot a part of the problem.

The Chief Magistrate believes that the fragmentation of Botswana’s criminal justice system has
contributed to the status quo.

D. Kgosi and Deputy Director Tribal Administration (Customary Courts)
As stated previously; customary courts have powers to sentence people to imprisonment and in theexercise of the provision may be guided by the Penal Code of Botswana. Section 18 of Customary Courts
Act provides for the sentences that maybe administered and also provides for imprisonment in Section 23.
The Customary Courts also impose suspended sentences, impose fines and order compensation. However,di-Kgosi * who normally preside over cases in the customary courts have problems in interpreting thecomplex statutory law in which they have no training. The Deputy Director – Tribal Administration statedthat this has resulted in a 70% backlog of cases waiting to be tried at the Customary Court of Appeal. The
Deputy Director also stated that the powerlessness of the Customary Courts was also due to the fact that
there was little or no collaboration between the Customary Courts and the Administration of Justice Division.
The Kgosi expressed concern over “excessive” modernization which has resulted in disorderliness incommunities, especially among young people. The Kgosi believed that building on a justice system thatstarts in di-kgotlana (village wards), i.e. adults guiding each other and young people, would assist in cutting
down on crime. Major cases would be the ones tried at the main Kgotla under Customary Law.
Regarding corporal punishment being regarded as “degrading and inhumane” (refer to Petrus andAnother v State. 1984 ; as well as Desai & Others v State. 1987 - Botswana Law reports); the Kgosi statedthat communities believe it to be a just punishment.
Ultimately, the main challenges facing the Customary Courts are lack of capacity building of thesentencing officers and an inadequate relationship with the mainstream justice system.

E. Principal – Ikago Centre: School of Industry
Ikago Centre, the only school of industry in Botswana, is situated about 50km from the capital city
Gaborone. It was established in 2001 to shelter male juveniles charged with horrific crimes ranging frommurder to rape to robbery. The Centre has the capacity to house 100 juveniles aged 14 to 18 years. At
the time of compiling this report there were 30 male juveniles accommodated there. Ikago does not havefacilities for female juveniles. The staff complement is 46. Twenty-two are professional officers and 14 areauxiliary members of staff.
1. Daily Routine
Though the daily routine is fairly structured, the residents at the Centre are reluctant to wear uniforms
because of perceived stigma (on their part) by members of the community; therefore it is not compulsory.
The daily routine is as follows:
•
•

242

The day commences at 06:00
Breakfast – 06:30

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS•••

Assembly – 07:30 (Gives the staff and boys the opportunity to start the day together. Morning talkemphasizes motivation and development of life-skills.)
The workday begins – 08:30
Lunch – 12:30 to 14:00

Monday, Wednesday and Friday are Workshop Education days. The Centre residents are taught a numberof practical vocational skills which include auto-mechanics, welding, woodwork, etc.
Tuesday and Thursday are mentoring and social skills development days. Led by the social workers andthe school nurse, activities include: psychosocial therapy, individual counselling and healthcare education.
On alternative Tuesdays and Thursdays the Centre residents work in the community under the supervisionof the social workers and the Centre’s technical staff.
There is an entertainment hall where the residents can play snooker or watch satellite TV. The Centre
also boasts a marimba band and the residents are being encouraged to form a traditional dance ensemble.
2. Challenges in Effective Functioning of Ikago Centre
The Principal at the Centre draws attention to the issues that hampered effective functioning of theCentre. These included:•

Unless the Centre administration makes an effort to establish linkages with magistrates in thevarious jurisdictions, there is no formal linkage between the Centre and the justice system. As aresult, many juveniles are sent to the Boy’s Prison where they ultimately associate with people
hardened by crime.

•

It appears that the Centre was established on the spur of the moment and as result it is “a whiteelephant” that breeds juvenile criminals and does not rehabilitate them. The Centre is not“categorized” as a prison, school or reformatory. The name “School of Industry” is redundant.

•

Rehabilitation is only emphasized in the written word, not practically, because the staff members are
not qualified in this area. There are occasions were the members of staff have failed as role-models.

•Due to being under-staffed and lack of training, the members of staff are employed on a 07:30 –16:30 basis, going home at the end of the day. As a result, the Centre residents are left to their own
wilful ways during the night under the supervision of security guards hired from an external security
company.

•

Security is lax. The Centre’s boundaries are marked by a high fence with barbed wire on the top
to create a “normal” environment as well as to deter the residents from leaving the premises.
However, the residents cut through the fence at night to leave the Centre to “entertain” themselves
out in the community and engage in disorderly behaviour until the early hours of the morning.

•

Due to lack of staff qualified in the area of rehabilitation and due the extreme anger of some of theCentre’s residents, vandalism of the Centre’s property is commonplace.

In conclusion, the purpose for having Ikago as a juvenile rehabilitation facility is defeated because it has apoor resource base and lacks qualified members of staff ensure its efficient functioning.
Lastly, as a professional working in Botswana’s justice system, I would like to draw attention to thefact that, in my experience, the main down-fall of our sentencing systems at present is lack of physicalinfrastructure, lack of financial resources and lack of human resources to ensure an efficient and effective
system.

243

RESOURCE MATERIAL SERIES No.79

BIBLIOGRAPHY
Moroka, L. 2008. The Challenges Of Punishment In A Dual Legal System In Botswana . (Paper
presentation)
Mujuzi, J. D. 2008. Working With The Media In The Search For Public Support For Alternative
Sentencing . (PowerPoint presentation)
Nelson, R. H. 2008. Alternative Sentencing Commonwealth Small States Southern Africa Region
Programme . (PowerPoint presentation)
Laws of Botswana last electronic update 31 December, 2006.
Botswana Law Reports 1984 – 2007 (1)244THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

APPENDIX A
THE PENAL CODE Cap 08:01
PART I

General Provisions (ss 1-33)
Punishments (ss 25-33)

26. Sentence of death(1) When any person is sentenced to death, the sentence shall direct that he shall be hanged by theneck until he is dead.
(2) Sentence of death shall not be pronounced on or recorded against any person convicted of an offence
if it appears to the court that at the time when the offence was committed he was under the age of 18 years,
but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if
so sentenced he shall be liable to be detained in such place and under such conditions as the President may
direct, and whilst so detained shall be deemed to be in legal custody.
(3) Where a woman convicted of an offence punishable with death is found in accordance with theprovisions of section 298 of the Criminal Procedure and Evidence Act to be pregnant, she shall be liable toimprisonment for life and not to sentence of death.

27. Imprisonment(1) Sentence of imprisonment shall not be passed on any person under the age of 14 years.
(2) A person convicted of an offence punishable with imprisonment for life or any other period may besentenced for any shorter term.
(3) A person convicted of an offence punishable with imprisonment may be sentenced to pay a fine inaddition to or instead of imprisonment.
(4) Notwithstanding any provision in any enactment which provides for the imposition of a statutory
minimum period of imprisonment upon a person convicted of an offence, a court may, where there are
exceptional extenuating circumstances which would render the imposition of the statutory minimum periodof imprisonment totally inappropriate, impose a lesser and appropriate penalty.

28. Corporal punishment(1) Subject to the provisions of subsection (4), no person shall be sentenced to undergo corporalpunishment for any offence unless such punishment is specifically authorized by this Code or any other law.
(2) A sentence of corporal punishment shall be inflicted once only. The sentence shall specify the
number of strokes, which shall not exceed 12, nor, in the case of a person under the age of 18 years, six.
(3) No sentence of corporal punishment shall be passed upon any of the following persons(a ) females;(b ) males sentenced to death;(c ) males whom the court considers to be more than 40 years of age.
(4) Where any male person under the age of 40 is convicted of any offence punishable withimprisonment, other than an offence listed in the Second Schedule to the Criminal Procedure and Evidence
Act, a court may, in its discretion but subject to the provisions of section 27(1), order him to undergo
corporal punishment in addition to or in substitution for such imprisonment.
(5) Where it is provided that any person shall be liable to undergo corporal punishment suchpunishment shall, if awarded, be inflicted in accordance with the provisions of section 305 of the Criminal
Procedure and Evidence Act.

245

RESOURCE MATERIAL SERIES No.79

29. Fines(1) Where a fine is imposed under any law, then in the absence of express provisions relating to suchfine in such law the following provisions shall apply(a ) where no sum is expressed to which the fine may extend, the amount of the fine which may be
imposed is unlimited, but shall not be excessive;(b ) in the case of an offence punishable with a fine or a term of imprisonment, the imposition of a fineor imprisonment shall be a matter for the discretion of the court;(c ) in the case of an offence punishable with imprisonment as well as a fine in which the offender issentenced to a fine with or without imprisonment, and in every case of an offence punishable with a fine
only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion(i) direct by its sentence that in default of payment of the fine the offender shall suffer
imprisonment for a certain term, which imprisonment shall be in addition to any otherimprisonment to which he may have been sentenced or to which he may be liable under acommutation of sentence; and also(ii) issue a warrant for the levy of the amount in accordance with the provisions of section 303of the Criminal Procedure and Evidence Act.
(2) In the absence of express provisions in any law relating thereto, the term of imprisonment or
corporal punishment ordered by a court in respect of the non-payment of any sum(a ) imposed as a fine;(b ) ordered to be forfeit to the State;(c ) ordered to be paid under the provisions of any other law,shall be such as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any
such case the maximum fixed by the following scale-

Amount of fine Maximum
Not exceeding P200 14 days or 6 strokes
P 200-P1000 One month or 9 strokes
P 1001-P10,000 Six months or 12 strokes
Exceeding P10,000 Two years imprisonment.

30. Forfeiture
The provisions of this Code with respect to the forfeiture of property to the State shall be in addition toand not in derogation from the provisions of sections 58 and 319 of the Criminal Procedure and EvidenceAct.
31. Security for keeping the peace or to come up for judgment(1) A person convicted of an offence not punishable with death may, instead of, or in addition to, any
punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, insuch amount as the court thinks fit, on condition that he shall keep the peace and be of good behaviour for atime to be fixed by the court, and may be ordered to be imprisoned until such recognizance, with sureties,
if so directed, is entered into; but so that the imprisonment for not entering into the recognizance shall notextend for longer than one year, and shall not, together with the fixed term of imprisonment, if any, extend
for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.
(2) When a person is convicted of any offence not punishable with death the court may, instead of
passing sentence, discharge the offender upon his entering into his own recognizance, with or without
sureties, in such sum as the court may think fit, on condition that he shall appear to receive judgment atsome future sitting of the court or when called upon.

246

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

32. Discharge of offender without punishment(1) Where, in any trial before a magistrate’s court, the court thinks that the charge is proved but isof the opinion that, having regard to the character, antecedents, age, health or mental condition of theaccused, or to the trivial nature of the offence, or to the extenuating circumstances in which the offence
was committed, it is inexpedient to inflict any punishment, the court may, without proceeding to conviction,
make an order dismissing the charge.
(2) An order made under this section shall, for the purpose of revesting or restoring stolen property,
and enabling the court to make any order under the provisions of sections 318 and 319 of the Criminal
Procedure and Evidence Act have the like effect as a conviction.

33. General punishment for offences
When in this Code no punishment is specially provided for any offence, it shall be punishable withimprisonment for a term not exceeding two years or with a fine, or with both.

247

RESOURCE MATERIAL SERIES No.79

APPENDIX B
THE CRIMINAL PROCEDURE AND EVIDENCE ACT Cap 8:02
PART XVIII

Punishments (ss 298-315)
298. Sentence of death upon a woman who is pregnant(1) Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where
the court before which a woman who is so convicted thinks fit to order, the question whether or not the
woman is pregnant shall, before sentence is passed on her, be determined by the court.
(2) The question whether the woman is pregnant or not shall be determined on such evidence as may
be led before the court either on the part of the woman or on the part of the State, and the court shall findthat the woman is not pregnant unless it is proved affirmatively to its satisfaction that she is pregnant.
(3) Where in any proceedings under this section the court finds that the woman in question is notpregnant, the woman may appeal to the Court of Appeal and the Court of Appeal, if satisfied that for any
reason the finding should be set aside, shall quash the sentence passed on her and, in lieu thereof pass on
her a sentence of imprisonment for life.

299. Manner of carrying out death sentences(1) No sentence of death shall be carried into effect except upon the special warrant of the President, towhom a record of all proceedings in the case shall be forwarded as soon as may be after sentence together
with a report upon the case from the officer presiding at the trial.
(2) Such special warrant shall be issued to the Sheriff or his deputy who shall, as soon after the receipt
of such special warrant as fitting arrangements for the carrying out of the sentence can be made, executesuch special warrant in the place appointed therein:
Provided that the Sheriff or his deputy shall not execute the warrant aforesaid if at any time thePresident by written notice under his hand to the Sheriff or Deputy-Sheriff intimates that he has decided
to grant a pardon or reprieve to the person so sentenced or otherwise to exercise the prerogative of mercy
with regard to him. Any notice by the President under this proviso shall be construed for all purposes as acancellation of the warrant aforesaid.

300. Cumulative or concurrent sentences(1) When a person is convicted at one trial of two or more different offences, or when a person undersentence or undergoing punishment for one offence is convicted of another offence, the court may sentence
him to such several punishments for such offences or for such last offence (as the case may be) as the court
is competent to impose.
(2) Such punishments, when consisting of imprisonment, shall commence the one after the expiration,
setting aside or remission of the other, in such order as the court may direct, unless the court directs thatsuch punishments shall run concurrently.

301. Conviction of other charges pending
Where an accused person is found guilty of an offence, the court may, in passing sentence, take into
consideration any other charge of a similar offence then pending against the accused if the accused admits
the other charge and desires it to be taken into consideration and if the prosecutor of the other charge
consents.
302. Imprisonment in default of payment of fines
Whenever a court has imposed upon any offender a sentence of a fine without an alternative sentenceof imprisonment, and the fine has not been paid in full or has not been recovered in full by a levy, the court
which passed sentence on the offender may issue a warrant directing that he be arrested and brought before
the court which may thereupon sentence him to such term of imprisonment as could have been imposed
248

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

upon him as an alternative punishment in terms of section 29 of the Penal Code or other written law.

303. Recovery of fine(1) Whenever an offender is sentenced to pay a fine, the court passing the sentence may, in its
discretion, issue a warrant addressed to the Sheriff or messenger of the court authorizing him to levy theamount by attachment and sale of any movable property belonging to the offender although the sentence
directs that, in default of payment of a fine, the offender shall be imprisoned. The amount which may belevied shall be sufficient to cover, in addition to the fine, the costs and expenses of the warrant and of theattachment, and sale thereunder.
(2) Such warrant when issued by the High Court may be executed anywhere within Botswana.
(3) Such warrant, if issued by a magistrate’s court, shall authorize the attachment and sale of the
movable property within the local limits of the jurisdiction of such magistrate’s court, and also without such
limits when endorsed by the magistrate having jurisdiction in the place where the property is found.
(4) If the proceeds of sale of the movable property are insufficient to satisfy the amount of the fineand the costs and expenses aforesaid the High Court may issue a warrant, or in the case of a sentence byany magistrate’s court may authorize such magistrate’s court to issue a warrant, for the levy against theimmovable property of the offender of the amount unpaid.
(5) When an offender has been sentenced to pay a fine only or, in default of payment of the fine,
to imprisonment, and the court issues a warrant under this section, it may suspend the execution of
the sentence of imprisonment and may release the offender upon his executing a bond with or without
sureties as the court thinks fit, on condition for his appearance before such court or some other court on
the day appointed for the return to such warrant, such day not being more than 15 days from the time of
executing the bond; and in the event of the amount of the fine not having been recovered, the sentence ofimprisonment shall be carried into execution at once.
(6) In any case in which an order for the payment of money has been made on non-recovery whereof
imprisonment may be awarded and the money is not paid forthwith, the court may require the personordered to make such payment to enter into a bond as prescribed in subsection (5), and in default of his
doing so may at once pass sentence of imprisonment as if the money had not been recovered.
(7) When an offender has been sentenced to pay a fine only or, in default of payment of the fine, to aperiod of imprisonment, and before the expiry of that period any part of the fine is paid or levied, the periodof imprisonment shall be reduced by a number of days bearing as nearly as possible the same proportion to
the number of days to which such person is sentenced as the sum so paid and levied bears to the amount of
the fine. An amount which would reduce the imprisonment by a fractional part of a day shall not be received.
No payment of any sum under this section need be accepted otherwise than during the ordinary office hours.

304. Manner of dealing with convicted juveniles(1) Any court in which a person under the age of 18 years has been convicted of any offence may,instead of imposing any punishment upon him for that offence (but subject to the provisions of section 26(2)of the Penal Code) order that he be placed in the custody of any suitable person designated in the order for a
specific period:
Provided that such order may be made in addition to the imposition of corporal punishment; and provided
further than no order made in terms of this subsection shall direct that the convicted person shall remain in
the custody in which he has been placed after he attains the age of 18 years.
(2) Any person who has been dealt with in terms of subsection (1) and who absconds from the custodyin which he was placed may be apprehended without warrant by any policeman and shall be brought as soon
as may be before a magistrate of the district in which he was apprehended.
(3) When any person is brought before a magistrate under the provisions of subsection (2) themagistrate shall, after having questioned the absconding person as to the reason why he absconded, order-

249

RESOURCE MATERIAL SERIES No.79(a ) that he be returned to the custody from which he absconded;(b ) that he be placed in the custody of another person for the remaining period of the original order; or(c ) that he be committed to prison for the remaining period of the order made under subsection (1).

305. Corporal punishment(1) When a person is sentenced to undergo corporal punishment such sentence shall be a sentence of
caning and shall be in accordance with the following provisions(a ) the caning shall be carried out in a manner and with a cane of a type approved by the Minister, who
may approve different types of cane for different classes of person;(b ) no caning shall be inflicted on any convicted person until he has been certified by a medical officer
to be fit for such punishment; caning shall only be inflicted in the presence of a medical officer, or, if one
is not available, in the presence of a magistrate; the medical officer or magistrate shall immediately stop
the infliction of further punishment if he considers that the convicted person is not in a fit state of healthto undergo the remainder thereof and shall certify the fact in writing;(c ) whenever under the provisions of paragraph (b ) any medical officer or magistrate has certified
that any prisoner sentenced to undergo caning is not in a fit state of health to undergo the whole or theremainder thereof he shall immediately transmit his certificate to the court which passed the sentence or
to a court having jurisdiction which may substitute another punishment in lieu of the sentence of caning;such prisoner may lawfully be kept in custody pending the decision of the court to which the medical
officer or magistrate has transmitted his certificate as hereinbefore provided;(d ) no sentence of caning shall be carried out by instalments;(e ) where at any one sitting of a court more than one sentence of caning is imposed on any person, thesentences so imposed shall be deemed to be one sentence for the purposes of subsection (2) of section
28 of the Penal Code.
(2) Every sentence of corporal punishment shall be carried out privately in a prison: Provided that in
the case of a person under 18 years of age the court before which such person is convicted may direct thatthe punishment be administered by such person and in such place as it may specify and in such case theparent or guardian of such first mentioned person shall have the right to be present.
(3) The Minister may by statutory instrument make an order specifying such places as he may consider
proper for administering corporal punishment in traditional manner with traditional instruments.

306. Recognizances to keep the peace and be of good behaviour
If the conditions upon which any recognizance or security under section 31 of the Penal Code was given are
not observed by the person who gave it, the court may declare the recognizance or security to be forfeited andany such declaration or forfeiture shall have the effect of a judgment in a civil action in that court.
307. Payment of fine without appearance in court(1) When any person has been summoned or warned to appear in a magistrate’s court or has beenarrested or has been informed by a peace officer that it is intended to institute criminal proceedings against
him for any offence, and an officer holding a rank or post to be designated by the Minister from time to time
for the purposes of this section by order published in the Gazette , has reasonable grounds for believing thatthe court which will try the said person for such offence will, on convicting such person of such offence, notimpose a sentence of imprisonment or corporal punishment or a fine exceeding P200, such person may signand deliver to such officer a document admitting that he is guilty of the said offence; and(a ) deposit with such officer such sum of money as the latter may fix; or(b ) furnish to such officer such security as the latter deems sufficient, for the payment of any finewhich the court trying the case in question may lawfully impose therefor, not exceeding P200 or the250

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

maximum of the fine with which such offence is punishable, whichever amount is the lesser, and such
person shall, subject to the provisions of subsection (8), thereupon not be required to appear in court toanswer a charge of having committed the said offence.
(2) Such person may at any time before sentence is passed upon him in terms of subsection (5) submit
to any person in charge of the aforesaid document an affidavit setting forth any facts which he desires tobring to the notice of the court in mitigation of the punishment to be imposed for the said offence, and such
affidavit shall be submitted together with the said document to the court which is to pass the sentence.
(3) An officer designated as aforesaid, if he is not the public prosecutor attached to the court in which
the offence in question is triable, shall, as soon as practicable after receiving a document referred to in
subsection (1), transmit it to such public prosecutor.
(4) Whenever such public prosecutor has received any such document he shall transmit it to theclerk of the said court: Provided that before doing so he may report the matter to the Director of Public
Prosecutions and ask him for his directions thereon.
(5) After receiving such document the clerk of such court shall cause it to be numbered and filed
consecutively in the records of that court in a file to be known as the criminal record (admission of guilt) file,which file shall for the purposes of any written law be deemed to be a criminal record book of that court andthe person in question shall, subject to the provisions of subsection (8), thereupon be deemed to have been
convicted by such court of the said offence, and such court shall pass sentence upon such person in accordancewith law: Provided that such court may decline to pass sentence upon him and may direct that he be prosecutedin the ordinary course, and in that case, if the said person has been summoned or warned in terms of subsection(1), he shall be summoned afresh to answer such charge as the public prosecutor may prefer against him.
(6) If the court imposes a fine on such person such fine shall be paid out of any sum deposited in termsof paragraph (a ) of subsection (1), or if security has been given in terms of paragraph (b ) of subsection(1) and the fine has not been paid in accordance with the terms of the security, the latter, if corporeal
property, may be sold by public auction and the fine paid out of the proceeds of the sale: Provided that if thewhereabouts of such person are known, written notice of the intended sale and of the time and place thereof
shall be given to him not less than three days before the sale takes place.
(7) If any balance remains of any such deposit or of the proceeds of any such sale, after payment of suchfine, such balance shall be paid over to the person who made such deposit or gave such security and if suchdeposit or such security is insufficient to pay the fine imposed, the balance remaining due shall be recoveredfrom the person upon whom the fine was imposed in the manner provided in this Act.
(8) At any time before sentence has been passed upon the person in question under subsection (5), theDirector of Public Prosecutions may direct that no action be taken in the matter under subsections (5), (6)and (7), but that such person be brought to trial in the ordinary manner: Provided that in that case, if such
person has been summoned or warned in terms of subsection (1), he shall be summoned afresh to answer
such charge as the Director of Public Prosecutions may direct.
(9) If at the conclusion of the trial referred to in subsection (8) the person tried is sentenced to pay afine, the provisions of subsections (6) and (7) shall apply.
(10) If at the conclusion of any proceedings against any person under this section, no fine is imposed
upon him, the money or security deposited by or on behalf of such person shall be returned to the person
who made the deposit.

308. Powers as to postponement and suspension of sentences(1) Whenever a person is convicted before the High Court or any magistrate’s court of any offenceother than an offence specified in the Second Schedule, the court may in its discretion postpone for a period
not exceeding three years the passing of sentence and release the offender on one or more conditions(whether as to compensation to be made by the offender for damage or pecuniary loss, good conduct orotherwise) as the court may order to be inserted in recognizances to appear at the expiration of that period,
251

RESOURCE MATERIAL SERIES No.79

and if at the end of such period the offender has observed all the conditions of the recognizances, the court
may discharge the offender without passing any sentence.
(2) Whenever a person is convicted before the High Court or any magistrate’s court of any offenceother than an offence specified in the Second Schedule, the court may in its discretion pass sentence, butorder that the operation of the whole or any part of the sentence be suspended for a period not exceeding
three years, which period of suspension, in the absence of any order to the contrary, shall be computed inaccordance with the provisions respectively of subsections (3) and (4). Such order shall be subject to suchconditions (whether as to compensation to be made by the offender for damage or pecuniary loss, good
conduct or otherwise) as the court may specify therein.
(3) The period during which any order for the suspension of a part of a sentence, made undersubsection (2) and affecting a sentence of imprisonment shall run, shall commence on the date uponwhich the person convicted was lawfully discharged from prison in respect of the unsuspended portionof such sentence, or if not then discharged because such person has to undergo any other sentence ofimprisonment, such period shall commence upon the date upon which such person was lawfully discharged
from prison in respect of such other sentence. If any portion of such other sentence is itself suspended,
the periods of suspension of all such sentences shall, in the absence of any order to the contrary, runconsecutively in the same order as the sentences.
(4) The period during which any order for the suspension of the whole of a sentence of imprisonment
shall run, shall commence(a ) where the convicted person is not serving another sentence, from the date from which thesentence wholly suspended was expressed as taking effect, or took effect; and(b ) where the convicted person is serving another sentence, from the date of expiration of that
sentence including any period thereof which may be subject to an order of suspension.
(5) If during the period of suspension of the whole of a sentence the convicted person is sentenced
to imprisonment the portion then remaining of the sentence wholly suspended shall be deemed to beconsecutive to the sentence of imprisonment subsequently awarded.
(6) If the offender has, during the period of suspension of any sentence under this section, observed all
the conditions specified in the order, the suspended sentence shall not be enforced.

309. Commencement of sentences
Subject to the provisions of section 308, a sentence of imprisonment shall take effect from and include
the whole of the day on which it is pronounced unless the court, on the same day that sentence is passed,
expressly orders that it shall take effect from some day prior to that on which it is pronounced.
310. Payment of fines by instalments
Whenever a person is convicted before the High Court or any magistrate’s court of any offence otherthan an offence specified in the Second Schedule, the court may in its discretion order that any fine imposedon such person be paid in instalments or otherwise on such dates, and during such period not exceeding
12 months from the date of such order, as the court may fix therein. If on such date or dates the offender
has made all payments in accordance with the order of the court, no warrant shall be issued committing theoffender to prison to undergo any alternative imprisonment prescribed in the sentence in default of paymentof the fine.
311. Consequences of failure to comply with conditions of postponement or suspension of sentence(1) If the conditions of any order made, or recognizance entered into, under the provisions of section
308 or section 310 are alleged not to have been fulfilled, the local public prosecutor may, without noticeto the offender, apply to any magistrate’s court within the local limits of whose jurisdiction the offender isknown or suspected to be, for a warrant for the arrest of the offender for the purpose of bringing him before
the court to show cause why such offender shall not undergo the sentence which has been, or may be,
lawfully imposed.

252

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS(2) Any application made under subsection (1) shall be supported by evidence in the form of an affidavit
or on oath, that the order or recognizance is still binding upon the offender and that such offender has failed,in a manner to be specified, to observe the conditions thereof.
(3) The court to which application is made under subsection (1) may, if it is satisfied that the offender
ought to be called upon to show cause why he shall not undergo the sentence which has been, or may be,
imposed, grant a warrant for the arrest of such offender for the purpose of bringing him to court to showcause as aforesaid.
(4) The court, before which any offender appears in consequence of an application under subsection (1),shall read, or cause to be read, to the offender, such application and the evidence given in support thereof,and shall thereupon call upon the offender to say whether he opposes such application.
(5) If such offender does not oppose the application and admits that he has not fulfilled the conditionsof the order made, or recognizance entered into, the court may order that the offender shall undergo thesentence which was, or is then, imposed upon him or may make an order under section 312 if the originalorder was made under section 308(2) or under section 310.
(6) If the offender denies the allegations and opposes the application, the court shall proceed to hear thematter in accordance with the principles generally applicable to criminal trials under this Act, and if it findsthat the offender has not fulfilled the conditions of any order made, or recognizance entered into, the court
may thereupon order that the offender shall undergo the sentence which was, or is then, imposed upon him,or may make an order under section 312 if the original order was made under subsection (2) of section 308
or under section 310.

312. Further postponement or deferment of sentence
The court before which an offender appears may, if the original order related to the suspension of asentence under section 308(2), or to the payment of a fine by instalments or otherwise under section 310,
and if the offender proves to the court’s satisfaction that he hasbeen unable through circumstances beyond
his control to fulfil the conditions of such order, in its discretion grant an order further suspending theoperation of the sentence or further deferring payment of the fine, subject to such conditions as might havebeen imposed at the time the original order was made.
313. Magistrates’ courts not to impose sentences of less than four days
No person shall be sentenced by a magistrate’s court to imprisonment for a period of less than four days,
unless the sentence is that the offender be detained until the rising of the court.
314. Discharge with caution or reprimand
Whenever a person is convicted before the High Court or any magistrate’s court of any offence otherthan an offence specified in the Second Schedule, the court may in its discretion discharge the offender witha caution or reprimand, and such discharge shall have the effect of an acquittal, except for the purpose ofproving and recording previous convictions.
315. Regulations
The President may make regulations, not inconsistent with this Act, as to all or any of the following
matters, namely, the appointment, powers and duties of persons (to be known as probation officers) towhom may be entrusted the care or supervision of offenders whose sentences of imprisonment havebeen suspended under this Act, the circumstances under which courts of law may entrust such careor supervision to probation officers, the conditions which shall be observed by such offenders while on
probation and the varying of such conditions, and generally for the better carrying out of the objects andpurposes of this Part.

253

RESOURCE MATERIAL SERIES No.79

APPENDIX CCUSTOMARY COURTS ACT CAP 04:05
12. Criminal jurisdiction(1) Subject to the provisions of section 13, a customary court shall have and may exercise criminal
jurisdiction to the extent set out in its warrant in connection with criminal charges and matters in which
the charge relates to the commission of an offence committed either wholly or partly within the area ofjurisdiction of the court.
(2) No customary court shall sentence a person to a period of imprisonment in excess of the period of
imprisonment authorised in its warrant.
(3) In the exercise of the jurisdiction under the provisions of this section customary courts may be
guided by the provisions of the Penal Code.
(4) In any prosecution in a customary court the prosecutor may be either the person who has a right tobring such prosecution under customary law or the Director of Public Prosecutions or any person authorized
thereto by the Director of Public Prosecutions.
(5) Notwithstanding the provisions of subsection (2), the President may, by order under his hand,authorize an increased jurisdiction in criminal cases to be exercised by any customary court to the extent
specified in the order.
(6) No person shall be charged with a criminal offence unless such offence is created by the Penal Codeor some other written law.

13. Cases excluded from the ordinary jurisdiction of customary courts
Subject to any express provision confirming jurisdiction, no customary court shall have jurisdiction to try(a ) cases in which the accused is charged with(i) treason, riot or any offence involving the security or safety of the State,(ii) an offence in consequence of which death is alleged to have occurred,(iii) bigamy,(iv) any offence under Division II of Part II (Offences against the Administration of Lawful
Authority) of the Penal Code with the exception of offences under sections 108, 119, 123, 125 and128 of the said Division,(v) bribery,(vi) an offence concerning counterfeit currency,(vii) robbery, where the person accused is of or above the age of 21 years,(viii) extortion by means of threats,(ix) an offence against insolvency law or company law,(x) rape,(xi) contravention of prohibitions relating to precious stones, gold and other precious metals,(xii) such other offences as may be prescribed;(b ) any cause or proceeding whereby divorce or a declaration of nullity of marriage or an order forjudicial separation is sought where such marriage has been contracted other than in accordance withcustomary law;(c ) any cause or proceeding(i) arising in connection with a testamentary disposition of property,(ii) arising in connection with the administration of a deceased estate to which any law of
Botswana applies,(iii) arising under the law relating to insolvency, or(iv) involving matters of relationships to which customary law is inapplicable;

254

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS(d ) cases relating to witchcraft without the general or special consent of the Director of Public
Prosecutions.

18. Punishments(1) Subject to the provisions of subsections (2), (3) and (4) and section 21 and to the provisions of
any other law for the time being in force a customary court may sentence a convicted person to a fine,
imprisonment, corporal punishment or any combination of such punishments but shall not impose any
punishment exceeding those set out in its warrant.
(2) No customary court shall sentence any female or any person who is, in the opinion of the court, of
the age of 40 years or over to corporal punishment.
(3) Where any person under the age of 40 years is convicted of any offence, a customary court may,in its discretion, order him to undergo corporal punishment in addition to or in substitution for any otherpunishment:
Provided that this subsection shall not apply to(a ) any offence in respect of which a minimum punishment is by law imposed; and(b ) any conspiracy, incitement or attempt to commit any offence referred to in paragraph (a ).
(4) No customary court shall subject any person to any punishment which is not in proportion to thenature and circumstances of the offence and the circumstances of the offender.

255

139TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.79

THE CRIMINAL JUSTICE RESPONSE TO CRIME PREVENTION - GUYANA
Fay Ingrid Clarke*

I. INTRODUCTION
The subject of crime and the quest for prevention continues to evoke varying responses at every level ofsociety all over the world.
General responses range from emotive to some level of consternation as new types of criminal activity
continue to ravage societies and acts which appear senseless often leave victims carrying the pain of theirloss for very long periods. Many victims never overcome the trauma of their experience. In recent years,
unfolding changes in the general criminal landscape have exposed the devastating effects of the numberof heinous crimes now perpetrated by gangs and youth. Additionally, the impact of those who have built
empires based on the manufacture, export and sale of illicit narcotics cannot be understated.
The narcotics trade is often accompanied by the export and sale of illegal weapons and ammunition.
The result is that the vast financial base of those parts of the underworld which are involved in illicit
drugs, arms and ammunition trafficking have developed structures comprised of a national, regional andtrans-national nature. In countries like Guyana, with fragile economies and large segments of the population
living in poverty, the lure of ‘easy money’ makes it difficult, if not impossible, for any one component of thejustice system to address in a comprehensive manner the current levels of crime.
As decision makers grapple with the ever evolving, expanding and dynamic nature of crime, many are
beginning to recognize that the fight must take a paradigm shift to compensate for the new variables being
presented and utilize multi-dimensional responses to confront the situation. Evidence of this global issue has
already led world leaders to expand alliances to confront the challenges of crime in the twenty first century.
In many countries, politicians and the general public demand responses which they feel could improvetheir sense of safety. Lawmakers respond by drafting legislation which increases the length of sentences andimposes new mandatory minimum sentence requirements. The results are burgeoning prison populations
which give rise to increased prison fights, unrest, inadequate staffing levels, ineffective or non-existentrehabilitation aims, and unsuccessful reintegration regimes which ultimately result in very high recidivism
levels. Guyana has also experienced varying levels of the crime phenomena demonstrated worldwide, and theconsequential effects of these realities. However, in spite of limited resources, Guyana’s decision makers haveundertaken a number of proactive measures to confront the often alarming displays of crime in the nation.
The region’s crime situation is not much different from Guyana. Between 1990 and 1999 there were 7,621
murders in Jamaica whilst for the same period, Guyana had 1,100 murders. In 2001, a Barbados Extended
Bulletin indicated that Barbados had an increase in crime over the last five years. A Washington report on the
Hemisphere, noted Trinidad and Tobago’s increasing violent crime rate, of which 70 percent involved drugs,
while police in Curacao also noted an increase in murders, of which most were execution style killings. The
diagnosis of the source of the crime upsurge in Guyana must thus factor in the ‘regional’ variable.
This paper will provide a brief overview of the criminal justice system, give insight into the Executive
and specific Ministerial responses to the topic, and discuss where we are and the way forward in our efforts
to expand present methods and implement new initiatives with specific attention to the introduction ofalternative sentencing, community custody and civil society collaboration to confront crime, as pivotal to* Superintendent of Prisons, Officer in Charge of Training, Welfare & Corrections, Guyana.

256

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

crime prevention strategies.

II. BRIEF OVERVIEW OF THE CRIMINAL JUSTICE SYSTEM
The nation of Guyana has three branches of Government, consisting of the Executive, Parliament andJudiciary.
The Judicial system is a hierarchy of Courts comprised of Magistrates, High/Supreme Court, Full Courtof the Supreme Court and the Court of Appeal, which is the court of last resort. There are 37 Courts, ofwhich 23 are of the Magistracy and 13 are of the High Court. Guyana also subscribes to the Caribbean Courtof Justice based in Trinidad and Tobago, where persons may seek redress for certain kinds of matters forwhich they failed to obtain victory at the Court of Appeal.
The legal tradition on which the Criminal Court of Appeal law is based consists of the English Common
Law and a series of indictable and summary offences, all heard in the Magistrates Court. After a preliminary
hearing is held in a Magistrate’s Court, indictable matters are heard in the High/Supreme Court. Appeals
go to the Full Court of the Supreme Court and finally to the Court of Appeal. Civil practice and procedure isbased on the English common law as well as Statutory Law (High Court/Court of Appeal. The majority ofcivil litigation cases take place in the Supreme Court.

III. BRIEF OVERVIEW OF THE GUYANA PRISON SERVICE
As a colony of the British, Guyana’s penal system was known as Her Majesty’s Penal Service. The namewas changed to The Guyana Prison Service (GPS) in 1957. There are five prisons spread over the northernpart of the country; three are in Region Four, where the capital city is also to be found. The GPS is headed
by a Director of Prisons who has overall responsibility for the prisons and a Deputy Director responsible forOperations. A Senior Superintendent of Prisons heads the main prison (Georgetown) and a Superintendentof Prisons has responsibility for Officers and Prisoners’ Training, Welfare and Corrections.
Other ranks include Assistant Superintendent of Prisons, Cadet Officers, Chief Officers, Principal
Officers II, Prison Trade Instructors, Principal Officers I, Prison Officers and Assistant Prison Officers who
perform administrative, clerical and custodial duties.
The total prison population now averages 2,900 daily, representing 26 percent of the national population of
770,000, spread over Guyana’s ten regions, comprised of over 83,000 square miles, and of whom the majority
live on the coast. The main prison now has an average of 1,000 prisoners daily, an increase of approximately
40 percent over the last 18 months and of which close to 60 percent are remand prisoners. The legal
responsibility of the GPS is ended when the prisoner is released upon completion of his or her sentence.
The GPS and Parole Board are both within the ambit of the Ministry of Home Affairs and whereas the
GPS was established by Prison Act No. 26 under the Laws of Guyana, the Parole Board was established
by Parole Act 24/1991 and aimed to promote rehabilitation of offenders through early release on specificconditions of supervision and after-care. The Parole Board is expected to liaise with the Probation Service
for home study, the police for records, visit prisons, meet with legal personnel and relatives of prospective
parolees. They also have to engage family and other members of the community where the crime occurred,
to sensitize them to the parolee. On the granting of parole, the Board also schedules the required contact
meetings for the parolee. Additional bodies who supplement rehabilitation efforts of prisoners are Prison
Visiting, who have wide-ranging power to intervene in all aspects of prisoners’ welfare and treatment as wellas make recommendations to the authorities, and the Discharge Aid Committees who assist indigent andneedy prisoners on their discharge from prison. In spite of these checks and balances, from time to time,
there are known and alleged cases of prisoner abuse and injuries which prison inmates incur due to fights,
especially when prisons are overcrowded.

A. Mission Statement of the Guyana Prison Service“The Guyana Prison Service has the responsibility of custody and retraining of prisoners committed tothe prison and to engage in economic and other social programs supportive to National Objectives”.

257

RESOURCE MATERIAL SERIES No.79

B. Profile of the Prison Population
A large number of the non-indictable and petty crimes are committed by recidivists who account for
approximately 50 percent of the prison population. Many of these prisoners are illiterate and come frompoor backgrounds, while 30 percent are drug related crimes and 8 percent of the total prison population are
awaiting trial for murder.
Current Prison Statistics

Georgetown
468 Convicted
570 Remanded
32 on Death Row
Overcrowded by
45 percent

New
Amsterdam
235 Convicted
131 Remanded
83 Females
1 Female on
Death Row
Overcrowded by
50 percent

Mazaruni

Lusignan

Timehri

76 at Mazaruni
114 at Sibley Hall

86 Convicted
4 Remanded

142 Convicted
1 Remanded

N/A

N/A

N/A

Overcrowded by
40 percent

Overcrowded by
15 percent

Overcrowded by
30 percent

Due to limited staff and resources as well as prisoner classifications, less than 40 percent of the total
prison population receives structured technical and/or vocational, or other, instruction. Moreover, priority
is given to security and training is often suspended and officers are assigned custodial duties when staff islimited due to illness or vacation.

IV. ESTABLISHED GPS REHABILITATION PRACTICES
A. Vocational Skills
In exercising its functions, the Guyana Prison Service has historically included a variety of rehabilitation
efforts in addressing the mandate expressed in the Mission Statement. The activities related to skills
training included literacy, numeracy, tailoring, carpentry, joinery, masonry, building construction, farming,baking, animal husbandry, and the use of a printing press. A large segment of this training was done on alimited scale by skilled tradesmen in the organization who were eventually promoted to the rank of Prison
Trade Instructor, as well as by some who were hired with the skill acquired from a Trade Institute or bybeing sponsored by the GPS to study at a trade school.
B. Coping and Commercial Skills
Other efforts at rehabilitation included periodical instruction on a variety of topics, given by Social
Workers, with the aim of achieving behavioural change.
Moreover, a substantial amount of motivational and religious instruction is provided by the main religious
bodies (Christian, Muslim and Hindu), which subsequently are often helpful in the prisoners’ reintegration
process.
In addition, a steel band called the Republican Steel Orchestra was formed and the instruction wasgiven by a prisoner who knew the art. This band produced over a thousand players since its inception,and has even won national competitions and proven to be a sustainable programme. This band was the
popular choice of a particular foreign Emissary for performing at several functions held by the British HighCommission.
An additional success story is the Republican Boxing Gym which has produced a number of boxers who
have made the service proud, both locally and internationally, by winning medals in every class. During theirannual week of activities showcasing the Guyana Prison Service, the prisoners beam with a sense of pride
on hearing and seeing the admiration of spectators who view the high quality evident in the wood, leather
and other crafts made for display to the public. By the female prisoners, intricate expressions are revealed incrocheted items, clothing, pickles, etc.

258

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

C. Community Interaction
The Guyana Prison Service has also practiced being involved in the community by providing annual
assistance in ‘clean up’ campaigns at schools, senior citizens’ homes, the compounds of the courts, and inpainting pedestrian crossings near schools. The Republican band provides musical renditions at various functions
and there was formerly an annual concert called “Prisons In Concert” which there are plans to reactivate.
D. Prisoners’ Incentive Scheme
A fund referred to as the Prisoners Incentive Scheme (PRISS) was developed to assist prisoners toaccumulate money for work undertaken during their incarceration. The principle applied was that theprisoner was assigned one third of whatever he or she earned, one third was assigned the GPS and the final
third was placed in a fund used for to purchase items which could be of benefit to the prisoners’ welfare.
V. RECENT EXPANSION OF REHABILITATIONOver the past ten years, rehabilitation efforts were expanded to establish a base whereby structured
components were developed to ensure that a larger number of prisoners could acquire a marketable skill foruse on release as well as provide the coping skills to facilitate successful reintegration.
Expanded Administrative components of this thrust included the design and development of entry poll
forms which provide personal, medical and academic data on the prisoner and risk assessment for theselection of prisoners to work within or outside the prison, for classification as trustees or orderlies.
Exit poll forms were designed to obtain data on how the prisoner evaluated his or her experience and to
determine whether he or she had a family to return to and their likelihood of successful reintegration.
Structured components of training curricula were developed which focused on addressing major
behavioral issues such as, anger management, conflict resolution, sex offenders’ rehabilitation, goal setting,building self esteem, overcoming adversity, counselling for addicts, and HIV/AIDS awareness.
Underpinning the foregoing was the developing of a signature project called “Prisoners of Purpose” (POP)established in 2001 by the writer, which saw dramatic change in the formerly violent prison environment at
the main prison. The strategy of this project utilizes the peer education concept, and those who successfully
participate in the foundational Behaviour Change Program, and display vastly improved attitudes, are thenselected as leaders to promote the concepts they were taught and then lead teaching sessions for other prisoners.
Prisoners who were part of this programme shared the principles at other locations when they weretransferred.
Over the past ten years, the recidivism rate of those who have attended and participated in the POP
programme has been less than five percent. Moreover, none of these prisoners have participated in unrest or
major conflict.

A. New Initiatives
The following classes were conducted on a structured manner to the prisoners at various locations,whereby the curricula were prepared in a modular method. All of these programmes were run by committed,
external facilitators. Efforts are underway to have the programmes accredited.
The topics were: automobile maintenance, ceramics, barbering, music (keyboard and guitar), making ofmulch, upholstery, how to use the computer, electrical installation, small appliance repairs, CXE English, andCXE Spanish.

B. Recruitment of Welfare Officers
Two Welfare Officers were recruited in 2006, and in 2007, a Prison School Teacher who is a graduate of
the Cyril Potter College of Education and has nine years’ experience as a Senior Master at a High School,joined the GPS Also coming on stream was a skilled Welder/Machinist Fitter. A number of other skilled
personnel are expected to join the plan for comprehensive rehabilitation later in 2009.

259

RESOURCE MATERIAL SERIES No.79

VI. CHALLENGES TO CHANGE
It is common knowledge that people dislike change and that management faces resistance when change
is introduced. The absence of a Change Management Strategy has made the efforts somewhat tedious aspeople prefer their ‘comfort zones’. Moreover, accounts are the same in other countries where the punitive
method of prison management was or is practiced. The orientation of persons in ‘prison’ structures are that
prison is not supposed to be nice or comfortable.
In many cases, aggression is the means of control and personnel are trained to have a ‘them’ against‘us’ mentality. These mindsets must be addressed in full awareness that the change cannot or will not
happen overnight. This attitude is inherent in the concept held by many that prison should be punitive andretributive in nature. The focal strategy is to provide relevant training for all levels of staff who can be madeto see that viable rehabilitation increases safety in the prison environment and for the community when theprisoner is released.

VII. THE WAY FORWARD:COMPREHENSIVE REVIEW OF REHABILITATION IN GPS
The Hon. Minister of Home Affairs, Mr. Clement Rohee MP has consistently demonstrated an intenseinterest in the subject of prisoners’ rehabilitation and has converted that interest to serious actions tomake his concern a reality. In addition to approving the hiring of new staff, he (in late 2008) requested thata thorough evaluation be made of the entire system, with a view to creating the conditions whereby every
prisoner would be exposed to some skill and behaviour change training. He also gave a commitment to seethat increased expenditure is allocated in the 2009 budget to see the refurbishing, equipping and retooling oftrade shops at all locations. These increases would result in the acquisition of competently skilled staff andfacilities equipped with the relevant machinery for effective training.

A. Education Campaign
Every member of staff must be made aware of the new thrust and be prepared to be part of the change engine
for effective rehabilitation. The method to be used can be a ‘top down’ and ‘bottom up’ approach with incentives
offered for inputs which can benefit the team. Because of the system of ‘seniority’ where upward mobility isconcerned, some effort will be necessary to convince them of the benefits to be derived from the new thrust.
B. Staff Welfare
A vital issue to be addressed when considering expanding rehabilitation of prisoners is the working
conditions of staff. This helps deflect the negative responses of personnel who conclude that the prisoners
are being given better chances to have their circumstances in life improved than is in fact the case.
Staff training and welfare have also gained the Minister of Home Affairs’ attention and emphasis isdirected towards providing solutions in these areas. Moreover, he has initiated collaborative agreementswith other Ministries such as Agriculture and Health, to join forces in the tasks at hand, which will benefit
the Guyana Prison Service. A number of other alliances are being considered, including one with the
Ministry of Education and the Ministry of Youth, Culture and Sport.

VIII. ADVANTAGES OF ALTERNATIVE SENTENCING FOR GUYANA
Many modern studies affirm the need to incorporate new strategies in the care and treatment ofoffenders, with a priority on rehabilitation. In the highly developed countries, much has been said of‘warehousing’ of criminals. Richer countries are able to build bigger and more secure prisons, yet this does
not necessarily achieve the rehabilitation of offenders. The use of Community Service Orders for certain
categories of offences will reduce overcrowding in the prisons and the risk of criminalizing petty and minor
offenders. The additional advantage is that the involvement of the community in the process helps change
the mindset of larger segments of the society in respect to the concern for the care and treatment ofoffenders. It is also a critical tool to assist in expanding efforts of reintegration.
I agree with the concept that certain categories of offences do not merit many being given custodial
sentences. Therefore, earnest efforts should be put into the implementation of Alternative Sentencing. I

260

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

contend that efforts at community-based alternatives to incarceration cannot achieve their fullest potential
unless accompanied by strategized yet synergistic efforts to increase awareness in general society thatevery person who commits a crime does not have to be incarcerated. The public must be enlightened
that the stigma prisoners experience on their release and their inability to obtain and maintain gainful
employment, often cause them to reoffend.
Other methods which Guyana can implement include diversion, developing halfway houses andtransitional correctional centres, community service and boot camps for youth.

IX. CONCLUSION
I recommend that a forum be considered whereby all the stakeholders may be gathered for consultationon the topic. A proposal I submitted to the Hon. Minister on the execution of a National Symposium, tobe titled “Collaborating to Confront the Effects of Crime”, has earned the endorsement of the Minister ofHome Affairs. The aim is to gather the main stakeholders who can be exposed to presentations and plenary
sessions to dissect the problems related to incarceration, overcrowding, rehabilitation, reintegration and thevalid position to consider alternative sentencing guidelines.
Since 2008, initial discourse has been undertaken with possible funding agencies, in regards to funding
the event. A positive response was garnered from a resident foreign diplomatic agency who indicated theirinterest in the possible funding of such an event.
I am confident that the opportunity for the execution of such an event will provide a common basis
for developing strategies which will cement community involvement in efforts to collaborate in order toconfront crime in our nation.

261

RESOURCE MATERIAL SERIES No.79

APPENDIXPRESIDENTIAL RESPONSE TO CRIME PREVENTIONFEATURE ADDRESS OF HIS EXCELLENCY PRESIDENT BHARRAT JAGDEO’S AT THE
LAUNCHING OF THE NATIONAL DRUG STRATEGY MASTER PLAN, 2005 - 2009
We are gathered here to launch the Guyana National Drug Strategy Master Plan 2005-2009 and I would
like to describe the main components of that Master Plan and speak briefly about our approach to the fightagainst Crime and Violence in our society.
Our approach is guided by our assessment of the crime statistics in Guyana and in the region, thechanging nature of crime, particularly its violent and trans-national features, and by what other countries havedone and are doing to fight crime. Above all, we are guided by our economic, social and political realities.
This 2005-2009 Plan was drafted in consultation with key persons in my administration, and included
Law Enforcement Agencies, the Military and Non-Governmental Organisations and civilian entities. The
Plan foresees the establishment of the National Anti-Narcotics Commission (NANCOM) and its associatedSecretariat to implement the Strategy. The Commission will be the focal point in this new counter-narcotics
strategy which will lead to the overall improvement in the co-ordination by various agencies.
The actual programmed activities that the Commission will implement and oversee over the next five
years are divided into Supply and Demand Reduction categories focused on improving:•

Criminal Justice Administrative system through the sustained training of court officials and theprovision of better Court facilities and set the Legal Framework in keeping with the regional legal
thrust against the drug trafficking industry.

•

Improvement of the Intelligence gathering functions of the Law Enforcement agencies and expanding
the Joint Intelligence Coordinating Centre which brings together representatives of the intelligencegathering apparatus of the Joint Services for better intelligence-led counter-narcotic operations.

•

The Criminal Investigation Department will be strengthened by expanded application of Information
Communication and Technology to create a simple central law enforcement database allowing readyaccess to records and asset holdings of drug traffickers.

•

The counter-narcotic agencies will be strengthened by the provision of additional resources. Moreequipment for will be procured: secure communication, land and river transportation, better bordercontrol facilities and the surveillance of our air and sea spaces.

•

The National Forensic Laboratory’s capacities will be strengthened by the acquisition of up-to-datetechnology and recruitment of necessary skills.

•

International cooperation will be expanded through the ratification of relevant and importantinternational conventions and treaties including○○•

the Inter-American Convention on Mutual Assistance on Criminal Matters; andthe Inter-American Convention Against the Illicit Trafficking, Manufacturing of Firearms,
Ammunition and Explosives.

Bilateral cooperation will be strengthened between Guyana, and its neighbours and other countries.

Under the Demand Reduction category of the Plan, the following activities would be implemented:•

262

Developing and implementing safe lifestyle programmes for our youths, strengthening the current
health and family life education programmes that target vulnerable women, children and adolescents

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS•

Providing continuous statistical surveillance on the prevalence of drug use in selected populations,to enhance policy formulation•

Encouraging increased civil society participation in anti-drug abuse activities including advocacy andthe provision of services and increased media involvement•

Providing better clinical and behavioural treatment for drug users and abusers through training of
relevant personnel and the establishment of additional rehabilitation centres, either directly or giving
support to NGOs. This would improve the availability of rehabilitation and counselling services

The implementation of our anti-drug strategy with its programs and activities would need to beresourced by the combined efforts of Central Government, and our bilateral and multilateral partners. At aminimum the incremental financial costs to implement the Master Plan is projected at G$650M GYD. Thisis a significant sum of money for Guyana, but appears paltry when compared to the resources provided
elsewhere in this hemisphere to fight Narco-trafficking. Clearly, international support would be critical forthe successful implementation of the Master Plan.
I am certain that we are all aware that Guyana and the other countries in the Caribbean and in Latin
America have seen an upsurge in criminal activities. Statistics, media reports and research all point to anincreases and new trends of violence and transnational crime. I know how shocked we all were a few weeks
ago when the Minister of National Security in Trinidad and Tobago disclosed the presence of more than 50
criminal gangs in that territory, and in that same week from Jamaica, there were reports of as many as 157
deaths in one month. More recently, the Prime Minister of Barbados referred to the danger for Barbadian
communities as a consequence of increased drug trafficking.
My colleague Heads and I have given considerable attention to this growing threat in the Caribbean. That
intense focus led to the creation of the CARICOM Ministerial Committee on Crime and Security. Alreadythat body has proposed initiatives for implementation in CARICOM countries.
However, in spite of the implementation of several of these and other initiatives such as the promulgationof new laws allowing easier criminal prosecutions, maritime interdiction, the provision of additional
resources (financial, human and technical), the statistics suggest that we are still to attain a sustained andsignificant impact on Crime and Violence in our region.
I wish to outline a few areas in which I intend to intensify efforts to make our communities safer places
to live. First we must heighten all STAKEHOLDERS INVOLVEMENT in implementing crime prevention
and crime fighting measures through:
1.
2.
4.
5.

Establishment of a National Commission on Law and Order
Creation of Community Policing Ministerial Unit
Tougher Action Against Racial Incitement And ViolenceGreater NGO Involvement In Crime Prevention

FOR CRIME PREVENTION, we also intend to pursue:
Penal Reform with emphasis on correction and reintegration
More attention will be directed to the Prison population and specifically from the perspective of ensuring
the return of prisoners especially the young and first offenders, to productive lives on their release. In thatregard, the staffing of the Guyana Prison Service would continue to be increased according to the approved
four-year plan to increase appointments of training instructors. This would provide more opportunities for
prisoners to acquire marketable skills during their period of incarceration. We envisage the introduction of
new programmes to develop and enhance life skills that will be beneficial to inmates. This hopefully, would
reduce recidivism among young offenders.
Heighten attention to Vulnerable and At-Risk Groups
The Administration will provide more resources that will increase the opportunities for the unemployed,
unskilled and out-of-school youth and prevent them falling prey to recruitment by anti-social and criminal

263

RESOURCE MATERIAL SERIES No.79

elements. This programme will complement existing ones which target ‘out-of-school’ young people. Many
wished to find a job or to continue studying, but they did not have the basic skills or qualification to realize
their ambitions. This program will correct this situation and allow them to lead productive lives. We mustensure that they do not get involved in negative activities.
Waiver of Duty and Taxes on Surveillance Technology for the Private Sector
I am disposed to consider the provision of duty and tax concessions on the importation of electronic
surveillance technology and other security related items to registered legitimate businesses to protect theirbusiness places and aid crime prevention.
1. Traffic:
		We are moving to introduce a modern traffic control system with more stringent laws, harsher
punishment and rigid enforcement. These would be supported by greater reliance on advanced
technology.
2. White-collar crime:		We will focus more attention and resources to combating white-collar crimes, bystrengthening the Fraud Squad in the CID by recruitment, additional training and applicationof relevant technology.
		

We will commit more resources to enhance the work of the Financial Investigative Unit. Since
becoming a member of Caribbean Financial Action Task Force, we now have greater accessto training of staff and the preparation of legislation that would make it easier to prosecute
money launderers.

3. Immigration:
		Due to the increased trans-national nature of crime involving alien smuggling and trafficking
in persons, we will modernise our Immigration and Naturalisation services. Therefore, we are
introducing machine-readable Passports using an integrated database and will enact tougher
legislation to address Immigration-related offences.
		

We are examining the feasibility of creating a separate entity to deal with Immigration andNaturalisation services.

4. Gun Control:		Due to increased gun-related crimes, my Administration will introduce tougher penalties for
those convicted of illegal possession and use of firearms. We shall also expand the Guyana
Revenue Authority’s ability to detect smuggled weapons at our sea and airports. Other
interventions include plans to increase of our military presence in the border areas for betterinterdiction and increase international co-operation to combat trafficking in firearms.

Strengthen Law Enforcement Agencies:
In addition to all of the above, there is a need for us to continue the increasing budgetary and policy
support provided to the Guyana Police Force and other Law Enforcement agencies. . The focus will be oncompiling crime statistics for use in guiding policy and operations.
In conclusion, I wish to thank the citizens who work with us to combat crime, and acknowledge ourinternational partners, for their current and anticipated support.
You are invited to join in - making the entire country safer is a national endeavour.
June 2005

264

139TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSENHANCING CRIME PREVENTION THROUGH COMMUNITY-BASEDALTERNATIVES TO INCARCERATION
Leo S. Carrillo*

I. INTRODUCTION
The Philippines, just like many other countries in the world, is actively pursuing its commitmentin the international community as set forth in the United Nations Standard Minimum Rules for NonCustodial Measures (The Tokyo Rules) regarding the treatment of its criminal offenders. It has long been
accepted that the search for alternatives to incarceration of offenders should take priority in the sentencing
arena if we are to really address the issues of prison effectiveness, overcrowding and the consequential
psychological harm resulting from prolonged or unnecessary incarceration.
The Philippines has offered many alternatives to incarceration of its criminal offenders and thesealternatives can generally be grouped as interventions in the pre-sentencing or post-sentencing stage ofthe criminal justice process. In practice however, it is the probation and parole system that is widely usedand can be considered as the best alternative for a community-based rehabilitation programme. For thesereasons, a more detailed discussion of these systems is presented, including the operational procedure andmandated programmes of the agency, the Parole and Probation Administration, which is tasked by law toadminister them.
Other alternatives to incarceration that are practiced in the Philippines are also presented, such ascommunity service, fines, release on recognizance, bail and diversion, which is specifically suited for minors
or children in conflict with law and greatly enhanced with the passage of Republic Act 9344.
A brief explanation of the operation of the Philippine Criminal Justice System is also included to show atwhat stage of the criminal justice process the alternatives to incarceration are offered.

II. UNDERSTANDING THE PHILIPPINE CRIMINAL JUSTICE SYSTEM
The criminal justice system in the Philippines is composed of five components or “pillars” and they areusually referred to as the “Five Pillars of the CJS”. Its components, composition and basic functions are as
follows.

A. Law Enforcement
Law enforcement is basically represented by the Philippine National Police (PNP), the National Bureau
of Investigation (NBI) and other law enforcement agencies. They have the duty to: (a) investigate crime; (b)arrest suspects; and (c) refer the case and suspects to public prosecutors or courts (if warranted).
B. Prosecution
Prosecution is basically represented by the public prosecutors, the Ombudsman, other prosecuting
officers of the different governmental agencies and even private lawyers who act as private prosecutors.
They have the duty to: (a) evaluate the police findings; (b) file the corresponding information or criminal
complaints in the proper courts; and (c) prosecute the offenders.
C. Judicial
The judiciary is principally represented by the Supreme Court, other regular trial courts and thespecial courts like Family Courts, Drugs Court, and the Sandiganbayan . They have the responsibility of* Regional Director, Region IX, Parole and Probation Administration, Department of Justice, Philippines.

265

RESOURCE MATERIAL SERIES No.79

final determination of the innocence or guilt of the accused after the latter has undergone the hierarchicalprocesses of the Philippine courts.

D. Correctional
The correctional aspect is represented by the Bureau of Corrections (BUCOR), the Bureau of JailManagement and Penology, the Provincial Jails for Institutional Corrections, and the Parole and Probation
Administration for Non-Institutional Corrections. These agencies have the main function of receiving
referrals from courts and other authorized governmental agencies.
E. The Community
The community is composed of the general public and is morally obliged to (a) create the environment
for development of civic-spirited and law-abiding citizens; (b) co-operate with duly constituted authorities
for effective implementation of criminal justice processes. The interaction and collective efforts of thecomponents of the Philippine criminal justice system is illustrated in Figure 1.
Figure 1
COMMUNITY

VIOLATORSLAWENFORCEMENTPROSECUTIONJUDICIARY

CORRECTIONSFLOWCHART OF PHILIPPINE CRIMINALJUSTICE SYSTEM(Note: Just like any other criminal justice model, the choice of alternatives to incarceration
is available at the early stage of the criminal justice process.)

III. THE PAROLE AND PROBATION ADMINISTRATION
A. Historical Background
Probation was first introduced in the Philippines during the American colonial period (1898-1945)
with the enactment of Act No. 4221 of the Philippine Legislature on 7 August 1935. This law created theProbation Office under the Department of Justice, which provided probation to first-time offenders 18 yearsof age or over, convicted of certain crimes. On 16 November 1937, after barely two years of existence, theSupreme Court of the Philippines declared the Probation Law unconstitutional because of some defects inthe law’s procedural framework.
In 1972, House Bill No. 393 was filed in the Congress, intended to establish a probation system in thePhilippines. This bill avoided the objectionable features of Act 4221. The bill was passed by the House of theRepresentatives, and it was pending in the Senate when Martial Law was declared, and the Congress wasabolished.
In 1975, the National Police Commission, acting on a report submitted by the Philippine delegation to
the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, createdan Inter-disciplinary Committee tasked to formulate a national strategy to reduce crime and to draft aprobation law. After 18 technical hearings over a period of six months involving 60 resource persons,
including international experts in the field of corrections, the draft decree was presented to a select groupof 369 jurists, penologists, civic leaders and social and behavioural scientists and practitioners. The group
overwhelmingly endorsed the establishment of an adult probation system in the country.

266

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

On 24 July 1976, Presidential Decree No. 968, also known as the Adult Probation Law of 1976, wassigned into law by the President of the Philippines.
With the enactment of this law, the Probation Administration was created to administer the probation
system. Under Executive Order 292, “The Administrative Code of 1987”, the Probation Administration was
renamed the “Parole and Probation Administration” and given the added function of supervising prisoners who,
after serving part of their sentence in jails are released on parole or are granted pardon with parole conditions.
Recently, the investigation and supervision of First Time Minor Drug Offenders placed under suspended
sentence (FTMDO) have become another added function of the Administration pursuant to the provisionsof Republic Act No. 9165, “The Comprehensive Dangerous Drugs Act of 2002” and per Dangerous Drugs
Board Resolution No. 2 dated 19 July 2005 and the Memorandum of Agreement between the Dangerous
Drugs Board and the Parole and Probation Administration dated 17 August 2005. As embodied in the said
Memorandum of Agreement, the Dangerous Drugs Board tapped the assistance of the Administration
through its manpower in the performance of its duties to investigate and supervise minor drug offenders
who apply for and/or are granted suspended sentences by the courts. The Dangerous Drugs Board appointed
some of the Administration’s trained personnel to be its authorized representatives to carry out the former’s
duty of determining whether a minor drug offender may enjoy a suspended sentence and supervising his or
her treatment and rehabilitation.
Further, Executive Order 468, mandating the revitalization of the Volunteer Probation Aide (VPA)
programme, places the Administration in the forefront in relation to crime prevention, treatment ofoffenders in the community-based setting and on the overall administration of criminal justice.
As aforementioned, Presidential Decree 968 was originally envisioned to cover only adult offenders but
as practiced today, supervision of clients now covers the following groups of offenders.
Figure 2

B. Major Final Outputs
1. Investigation Services for Petitions for Probation, Parole, Executive Clemency and Suspended Sentence
for First Time Minor Drug Offenders
This programme makes certain the suitability of petitioners for probation, parole, conditional pardon
and first-time minor drug offenders, who will likely respond to community-based individualized treatment.
Those offenders who have no potential to reform are recommended to remain in jail or prison to ensurecommunity safety.
It gathers information on the petitioner’s personality, character, antecedents, environment and otherrelevant information, which includes the internal as well as external resources which shall be tapped inrehabilitating clients.

267

RESOURCE MATERIAL SERIES No.79

The investigation of first-time minor drug offenders in the implementation of Section 57 (Probation andCommunity Service under the Voluntary Submission Program) and Section 70 (Probation or Community
Service for a First-Time Minor Drug Offenders in lieu of imprisonment) of Republic Act 9165, “TheComprehensive Dangerous Drugs Act of 2002”, was implemented only in 2006 pursuant to a Memorandumof Agreement between the Administration and Dangerous Drugs Board.
2. Supervision and Rehabilitation Services for Probationers, Parolees, Conditional Pardonees and First-Time
Minor Drug Offenders Placed on Suspended Sentence or Community Service
This programme seeks to administer and execute existing laws relative to probation and parole systems
in order to effect the rehabilitation and integration of probationers, parolees and pardonees as productive,
law abiding and socially responsible members of the community.
Supervision is the essence of the probation and parole systems as it is in the area where intervention
strategies are effected towards client rehabilitation.
The objective of supervision is the permanent regeneration of the client’s attitude towards law
observance. Supervision treatment should be concerned with the total configuration of the offender’spersonality in relation to family, community and society.
3. Administration of Volunteer Probation Aide Program (Volunteer Program Revitalized – Executive Order
468, dated October 11, 2005)
In support of the national policy of maximizing community involvement in the administration of thecriminal justice system, it has become imperative for the Parole and Probation Administration to open every
opportunity to allow people’s participation in the implementation of the parole and probation programmes.
The recruitment and deployment of volunteers who can assist the Administration in the pursuit of
its vision, mission and goals will play a pivotal role in strengthening the essence of partnership between
government and the private sector in ensuring the success of programmes and activities that derive their
existence from public funds.
Volunteer Probation Aides (VPAs) are provided with necessary training and orientation for them toappreciate the knowledge, skills, attitudes and values that will enable them to perform their functions andduties with utmost efficiency, effectiveness and productivity, and at the same time, experience fulfilment andsatisfaction from a job that gives them very minimal or no monetary returns at all.

IV. THE PROBATION AND PAROLE SYSTEM
A. Probation
1. Definition
Probation is a disposition under which a person who is convicted of criminal offence is released, subject
to the conditions imposed by the sentencing court and to the supervision of a probation officer (Section
3(a), Probation Law of 1976). It is a mere privilege and as such, its grant rests solely upon the discretion of
the court. A court may, after it shall have convicted and sentenced a defendant and upon application within
15 days from promulgation of judgment, suspend the execution of said sentence and place the defendanton probation for such period and upon such terms and conditions as it may deem best. It may be granted
whether the sentence imposes a term of imprisonment or a fine only. The filing of the application shallbe deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable(Section 4, Probation Law of 1976).
2. Disqualifications
Any person who is not otherwise disqualified under the probation law can apply. The following are
disqualified to apply for probation (Section 9, Probation Law of 1976):
•
•
•

268

Those sentenced to serve a maximum term of imprisonment of more than six years;
Those who have previously been convicted by final judgment of an offence punished by imprisonmentof not less than one month and one day and/or a fine of not less than two hundred pesos;
Those who have been placed on probation under the Probation Law;

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

•
•
•
•

Those who are already serving sentence at the time the Probation Law became applicable or took effect;
Those whose conviction is on appeal;
Those convicted of violation of the Omnibus Election Code of the Philippines;
Those convicted of violation of Wage Rationalization Act (Sec. 12, Republic Act No. 6727).

B. Parole
1. Definition
Parole is the conditional release of a prisoner from a correctional institution after he or she has served theminimum period of his or her indeterminate sentence. A prisoner case shall not be eligible for review by the
Board of Pardons and Parole unless: (a) the prisoner is confined in prison or jail to serve an indeterminate
sentence, the maximum period of which exceeds one year, pursuant to a final judgment of conviction which
has become final and executory, and (b) he or she has served the minimum period of said sentence (Rule 2,Sec. 2.1 of Rules of Parole, 26 June 2003). Act 4103 as enacted in 1933, otherwise known as the Indeterminate
Sentence Law, is the basic law governing the administration of the parole system in the country. The Boardof Pardons and Parole is the administrative arm of the President of the Philippines in the exercise of theconstitutional power to grant parole and other forms of executive clemency after conviction by final judgment.
2. Persons Who are Disqualified from Parole
The following persons are disqualified to be granted parole:
•
•
•
•
•
•
•
•
•
•
•
•

Those convicted of an offence punished with the death penalty, reclusion perpetua or life
imprisonment (reclusion perpetua has a duration of 20 years and 1 day to 40 years of imprisonment);Those convicted of treason, conspiracy or proposal to commit treason or espionage;
Those convicted of misprision of treason, rebellion, sedition or coup d’etat ;Those convicted of piracy or mutiny on the high seas or Philippine waters;
Those who are habitual delinquents;
Those who escaped from confinement or evaded sentence;
Those who having been granted conditional pardon by the President of the Philippines violated anyof the terms thereof;
Those whose maximum term of imprisonment does not exceed one year or those with definite sentence;
Those certified as suffering from mental disorder as certified by a government psychiatrist or
psychologist;
Those whose conviction is on appeal or has not yet become final and executory;Those who have pending case/cases;
Those national prisoners serving sentence in a municipal, city, district or provincial jail, unless theconfinement in said jails is in good faith or due to circumstances beyond the prisoner’s control.

V. ADMINISTRATION OF PAROLE AND PROBATION AS COMMUNITY-BASEDALTERNATIVES TO INCARCERATION
A. Investigation and Supervision
1. Investigation of Court Referrals
The investigation process involves detailed and in-depth study of the applicant’s criminal records, family
history, educational background, married life, occupational records, interpersonal relationships, spirituality,
behavioural history, substance use, economic and social status and other aspects of his or her life.
The investigation procedures as enunciated in the Probation Law of 1976 are as follows: After conviction
and sentence, an offender or his or her counsel files a petition for probation with the trial court, which inturn orders the probation officer to conduct a post-sentence investigation to determine whether or not
an offender may be placed on probation. The grant of probation is premised upon three conditions: (1)an application for probation by the offender; (2) an investigation conducted by the probation officer; and(3) a determination by the court that the ends of justice and the best interest of the public as well as theoffender will be served thereby (Section 5 ). The post-sentence investigation report must be submitted by
the probation officer within 60 days from receipt of the order of the court to conduct investigation. The
court shall resolve the petition for probation not later than 15 days after receipt of the said report. Pending
submission of the investigation report and the resolution of the petition, the defendant may be allowed on
temporary liberty under his or her bail filed in the criminal case, provided that, in cases where no bail is

269

RESOURCE MATERIAL SERIES No.79

filed or that the defendant is incapable of filing one, the court may allow the release of the defendants onrecognizance to the custody of a responsible member of the community who shall guarantee his appearance
whenever required by the court (Section 7 ). The grant of probation in effect suspends the execution of thesentence of imprisonment.
2. Investigation of Board of Pardons and Parole/Jail Referrals
The pre-parole/executive clemency investigation is conducted to provide the Board of Pardons andParole with necessary and relevant information in determining the prisoner’s fitness for parole or any formof executive clemency. The investigation and evaluation focus on the physical, mental and moral records ofprisoners confined in city jails, the national penitentiary and penal colonies to identify who are eligible forparole or executive clemency.
3. Investigation of Referrals from the Dangerous Drugs Board
The conduct of a Suspended Sentence Investigation which aims to gather substantial data or information
about all aspects of the client’s life will be a crucial factor in the grant or denial of the petition for suspensionof sentence.

B. Administration’s Performance Target
In 2007, the national average disposition rate for probation investigation was 94.93, surpassing theAdministration target disposition rate of 90% for investigation cases completed within 60 days. For preparole/executive clemency investigation, the Administration obtained 97.42% average disposition rate.
It is noteworthy to mention that the courts, the Board of Pardons and Parole and the Dangerous Drugs
Board often uphold the findings and recommendation of the field officers as can be measured in terms ofsustained recommendation of 99.59% for investigation and 99.91% for supervision.

VI. CORRECTION AND REHABILITATION OF OFFENDERS
Probation once granted to an applicant is accompanied by conditions imposed by the court and which
conditions must be followed by the probationer while he or she is under the supervision of a probation
officer. There are two types of conditions that the probationer must adhere to. These are the generalmandatory conditions and the special or discretionary conditions, both of which are incorporated in every
order of probation issued by the court.
•

The mandatory conditions require that the probationer shall (a) present him or herself to theprobation officer designated to undertake his or her supervision at each place as may be specified in
the order within 72 hours from receipt of said order, and (b) report to the probation officer at least
once a month at such time and place as may be specified by the officer.

•

Special or discretionary conditions are those additional conditions imposed on the probationer which
are geared towards his or her correction and rehabilitation outside of prison and in the community
to which he or she belongs. The court may require him or her to: (a) co-operate with a programmeof supervision; (b) meet his or her family responsibilities; (c) devote him or herself to a specificemployment and not to change said employment without the prior written approval of the probation
officer; (d) undergo medical, psychological or psychiatric examination and treatment and enter andremain in a specified institution, when required for that purpose; (e) pursue a prescribed secularstudy or vocational training; (f) attend or reside in a facility established for instruction, recreation
or residence of persons on probation; (g) refrain from visiting houses of ill-repute; (h) abstain fromdrinking intoxicating beverages to excess; (i) permit the probation officer or an authorized social
worker to visit his or her home and place of work; (j) reside at premises approved by it and not tochange his or her residence without prior written approval; or (k) satisfy any other condition related
to the rehabilitation of the defendant and not unduly restrictive of his or her liberty or incompatible
with his or her freedom of conscience. The conditions as enumerated are non-exclusive. The court
has the discretion to add other conditions or omit some of those already provided.

A violation of any of the conditions may lead either to a more restrictive modification of the same or the
revocation of the grant of probation. Consequent to the revocation, the probationer will have to serve thesentence originally imposed.

270

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

In order to address the different areas where the client may need assistance or help in pursuing his or
her rehabilitation, the Administration through its field officers conducts different rehabilitation activities
intended to focus on the needs of the clients. These activities are always conducted in co-ordination withsocio-civic, charitable, religious organizations, local government, individuals and our Volunteer Probation
Aides. The rehabilitation activities are as follows.

A. Individual and Group Counselling
Individual counselling involves one-on-one interaction between the client and the probation and parole
officer. The officer assists the client in trying to sort out his or her problems, identify solutions, reconcile
conflicts and help resolve them.
Group counselling has the same objective but it is done with a group, ideally intended for those withsimilar problems, conflicts or offences. The activity focuses on reminders of compliance to the conditionsof their probation and parole, lectures on individual and marital problems, behavioural problems, proper
conduct in the community, health issues and social responsibility, as well as environmental awareness.

B. Social-Moral and Values Formation and Spiritual/Religious Activities
These activities are accomplished through seminars, lectures or training offered or arranged by theoffice, most of the time inviting outside resource person and availing of their services for free. Active NonGovernmental Organizations, local government units, lay ministers and their ministries, school and faculty
associations provide much help in facilitating the conduct of these activities.
C. Work and Livelihood
The Administration initiates a self-sustaining livelihood programme to ensure that a client can provide
basic necessities for himself and his or her family. Field officers conduct/organize seminars for a homebased, labour intensive economic activity, in co-ordination with local government units, non-governmentorganizations and civic organizations which can assist the clients in the pursuit of feasible livelihood projects.
D. Skills Training
Productivity and economic sufficiency of the clients during the process of reintegration is one of theobjectives of the Administration aimed to achieve for the clients, such that clients with inadequate technicalknow-how are encouraged and referred for skills training to enhance/acquire marketable skills to make themmore competitive for employment.
E. Health and Medical Services
To address some of the basic needs of clients and their families, medical missions are organized toprovide various forms of medical and health services including physical examination and treatment,
free medicines and vitamins, dental examination and treatment, drug dependency test and laboratory
examinations. Psychological testing and evaluation as well as psychiatric treatment are likewise provided by
the Administration’s Clinical Division and if not possible by reason of distance, referrals are made to othergovernment accredited institutions.
F. Literacy Programme
In co-ordination with local government unit programmes, adult education classes are availed of tohelp clients learn basic writing, reading and arithmetic. Likewise, literacy teach-ins during any sessions
conducted for clients become part of the module. This is particularly intended for clients who are “no read,no write” to help them become functionally literate. Likewise, there are regular linkages with educationalfoundation, other government organizations and non-government organizations for free school supplies, bags
and uniform for clients’ children and relatives.
G. Community Service
This programme refers to the services in the community rendered by clients for the benefit of society. It
includes tree planting, beautification drives, cleaning and greening of surroundings, maintenance of publicparks and places, garbage collection, blood donation and similar socio-civic activities.

271

RESOURCE MATERIAL SERIES No.79

H. Clients’ Self-Help Organization
This programme takes the form of co-operatives and clients’ associations wherein the clients form
co-operatives and associations as an economic group to venture on small-scale projects. Similarly, client
associations serve another purpose by providing some structure to the lives of clients where they re-learn thebasics of working within a group with hierarchy, authority and responsibility much like in society in general.
I. Payment of Civil Liability
The payment of civil liability or indemnification to victims of offenders is pursued despite the economic
status of clients. Payment of obligations to the victims instils in the minds of the clients their responsibility
and the consequences of the harm they inflicted on others.
J. Environment and Ecology
To instil awareness of and concern for preserving ecological balance and environmental health, seminars/
lectures are conducted wherein clients participate. These seminars/lectures tackle anti-smoke belching
campaigns, organic farming, waste management, segregation and disposal and proper care of the environment.
K. Sports and Physical Fitness
Activities that provide physical exertion like sports, games and group play are conducted to enhance
the physical wellbeing of clients. Friendly competitions of clients from the various offices of the sectors,
together with the officers, provides an enjoyable and healthful respite.
VII. PROGRAMME FOR THE REHABILITATION OF CLIENTS
It is a community-based, harmonized three-pronged approach to crime prevention and treatment ofoffenders with restorative justice as its philosophical foundation, therapeutic community its unifying
structure and volunteerism its lead community resource.
It can also be described as an individualized, community–based programme using therapeutic community
as the treatment modality that integrates restorative justice principles and practices and mobilizes
community involvement through volunteerism.

cal
JUSTICEl

RESTORATIVE

va

Em
o
Ps tio
yc na
ho l
lo
gi

ge

na

l

vi

l

al

Ma

na

ua

tu

Be

tio

ur

ct

iri

272

VPA

ca

S

lle

Victim

Vo

te

m

Sp

vi

or

t
en

In

ha

Figure 3: Symbolism of the Umbrella

PPO

OffenderTHE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

The integration of the three programmes is depicted by the diagram of the umbrella.
The rod holding up the umbrella represents restorative justice (RJ) which is the philosophical foundationof the agency mission and provides the unifying principle for all rehabilitation activities integrated within thetherapeutic community (TC) modality.
The four-panelled canopy represents the TC Modality with its four distinct but overlapping categories
of activities, namely: behaviour shaping/behaviour management; emotional and psychological assistance;
intellectual and spiritual; and vocational/survival skills categories.
The two figures holding up the umbrella represents the Probation and Parole Officer and the volunteer
probation aides (VPA) who work collaboratively in order to bring about the social transformation of
offenders, victims and community.

A. Therapeutic Community
Therapeutic Community is based on the Social Learning Model, which utilizes the community as theprimary therapeutic vehicle to foster behavioural and attitudinal change. In this model, the client receives
the information and the impetus to change from being a part of a community. The expectations that thecommunity places on its individual members reflect not only the needs of the individual, but also the socialand support needs of the community. This community model provides social expectations, which are parallelto the social demands that the client will confront upon discharge to their home community. The attitudes,
skills and responsibilities learned in the community are not only necessary for survival, but also, essential tosurviving in the larger community.
B. Restorative Justice
Restorative Justice is a victim-centred response to crime that provides opportunity of restoring broken
relationship caused by crime and putting closure to the hurt feelings and repairing the damage done among
those directly affected – the victim, the offender, their families and the community. In the restorative
process, parties affected are encouraged to actively participate together in the resolution of mattersresulting from the offence with the fair and impartial third party or the Chief Probation and Parole Officer orinvestigating officer as mediator. During the year 2007, the programme effected the healing process among
1,254 victims and 3,170 clients by way of dialogue, victim-offender mediation, conferencing, restitution,community work service and peacemaking encounter and/or agreement.
C. Volunteer Probation Aide Program
The Volunteerism Program of the Philippines has evolved, being mandated in Section 28 of the
Presidential Decree No. 968, otherwise known as Adult Probation Law of 1976, which authorizes theappointment of citizens of good repute and probity to act as Volunteer Probation Aide to assist the probation
officer in the supervision of probationers.
Since the Administration recognizes the vital role of the community in the treatment and rehabilitationof clients, probationers, parolees and pardonees, there was a move to revive the Volunteer Probation
Aide Program. Hence in 2002, Executive Order No. 468 was issued for the Revitalization of the Volunteer
Probation Aide of the Administration which aims to heighten and maximize community involvement andparticipation in the community-based programme in the prevention of crime, treatment of offenders andadministration of criminal justice system. This is also used as a strategy to address the lack of manpower inthe Administration.
To implement things in order, the Administration has engaged in aggressive and extensive recruitment
and appointment of qualified Volunteer Probation Aides following the prescribed set of criteria with a target
that by the end of 2010, the number of Volunteer Probation Aides appointed would reach 5,000. At present,
the Administration has already exceeded its initial target set for year 2010.
1. Current Situation
The Philippines has 79 provinces and cities, with 229 Parole and Probation field offices. A total of 704
Probation and Parole Officers are supervising 36,821 clients as of 30 September 2008.

273

RESOURCE MATERIAL SERIES No.79

2. Recruitment and Appointment
Only about 259 volunteers were recruited as of 2003. As of 21 November 2008, however, a total of 7,554
Volunteer Probation Aides were already appointed, with 1,704 Volunteer Probation Aides appointed fromJanuary to 21 November, 2008.
Figure 4 shows the Cumulative Total of Volunteer Probation Aides Appointed by Region from 2003 toNovember 21, 2008.
Figure 4

Region
NCR
CAR
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
XII
CARAGA

2003
10
0
5
2
6
32
79
4
41
2
27
10
32
0
9

2004
70
2
36
12
29
154
84
12
46
21
30
111
65
0
9

2005
107
11
191
43
157
429
90
348
203
75
70
112
115
43
36

2006
159
39
241
54
652
922
108
441
288
121
147
222
177
73
94

2007
312
225
280
168
958
1184
176
533
482
208
319
335
251
151
268

2008
521
293
323
256
1141
1271
225
764
709
316
478
416
332
214
295

Total

259

681

2030

3738

5850

7554

2. Volunteer Probation Aide Mobilization
The target ratio for Volunteer Probation Aides supervising clients is 1:2. As of 30 September 2008, of
36,821 total active supervision cases only 7,466 (20.28 percent) are supervised by 2,347 Volunteer Probation
Aides. This accounts for only 31% of 7,554 appointed Volunteer Probation Aides.
3. Trainings and Development
For effective implementation of the Volunteer Probation Aide Program and proper utilization of the
Volunteer Probation Aides, continuous training and workshops are held to equip the Probation and Parole
Officers and Volunteer Probation Aides with adequate knowledge and skills in the implementation of the
programme and facilitation of supervision work in the community, with the technical assistance of Japan
International Cooperation Agency and the United Nations Asia and Far East Institute for the Prevention of
Crime and Treatment of Offenders, since the revitalization of the Administration’s programme.
The Basic Training for Volunteer Probation Aides, a 16-hour basic training session, is given to prior
to the VPOs’ supervision of clients. Other training sessions which are continuously conducted for the
Probation and Parole Officers/Volunteer Probation Aides are the following:
•
•
•
•
•
•
•

274

Information Drive
Orientation
Basic Training
Specialized Training on Restorative JusticeSpecialized Training on Therapeutic Community Modality
Leadership Training
Capability Building of VPAs on the following:THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

○
○
○
○
○
○

Managing their own organization
Leadership and Organizational Development
Team BuildingCounselling and other skills necessary in the conduct of their duties and responsibilities
In-Country Training Program on the Holistic Approach to Volunteer Resource Development
Country Training Programme on the Revitalization of the Parole and Probation Administration
Volunteer Probation Aide Programme in Japan

4. Organization
At present, out of 229 field offices, 125 ((54.59 percent) have already organized their associations. As to
its membership, out of 7,554 appointed Volunteer Probation Aides, 3,870 (or 51.23 percent) are members.
Only 104 field offices have not yet organized their association though they have already appointed Volunteer
Probation Aides.
There is already a national association of Volunteer Probation Aides – the Association of Volunteer
Probation Aides of the Philippines (AVPAP) and registered with the Security and Exchange Commission (SEC).

VIII. OTHER ALTERNATIVES TO INCARCERATION
A. Community Service
This programme refers to the services in the community rendered by clients for the benefit of society. It
includes tree planting, beautification drives, cleaning and greening of surroundings, maintenance of publicparks and places, garbage collection, blood donation and similar socio-civic activities. The effectivenessof community service is often underestimated or underappreciated and usually imposed only as an add-on
requirement in probation and parole supervision. Under RA 9165, The Comprehensive Dangerous Drugs
Act of 2002, community service can now be imposed as a separate penalty.
B. Fine
In lieu of imprisonment the court may impose upon the offender the payment of a fine commensurate
to the offence he or she committed. Imposition of fines or finical punishment is traditionally used inconjunction with other penalties or for minor offences. Interestingly, the Supreme Court of the Philippines ina circular has discouraged judges from imposing the penalty of imprisonment for violation of Batas Pambansa
22, the Bouncing Check Law, and instead to consider fine as the more appropriate penalty. Prosecution forviolation of the Bouncing Check Law is now also covered by the Summary Rules on Criminal Procedure
where summons are just issued for the appearance of the accused instead of the usual warrant of arrest.
C. Release on Recognizance
Recognizance is an obligation of record, entered into before some court duly authorized to take it, withcondition to do some particular act or acts, the usual condition being the appearance of the accused for trial.
The application for release on recognizance may be filed at any time before conviction in the court where thecase is pending.
Presently, release on recognizance is available only in the following instances:1.

When the offence charged is for violation of an ordinance, a light felony or a criminal offence,
the imposable penalty for which does exceed six months’ imprisonment and/or a 2,000 peso fine
(Republic Act 6036).

2.

When a person is in custody for a period equal to or more than the minimum of the principal penalty
prescribed for the offence charged (Rule 114 Section 16, Revised Rules on Criminal Procedure).

3.

When the accused has no bail filed or he or she is incapable of filing for bail (Rule 114, Section 24,
Revised Rules on Criminal Procedure).

4.

When the youthful offender is held for physical and mental examination, trial or appeal (Presidential
Decree 603).

275

RESOURCE MATERIAL SERIES No.79

A new bill on release on recognizance (Recognizance Act of 2008) is now pending in the Philippine
Congress. The Administration strongly supports such proposal. This measure is intended to serve as theenabling law for the full implementation of release on recognizance as an instrument for temporary release.
Moreover, this measure is a means to promote the principle of restorative justice especially among poor
litigants who have yet to be convicted but are detained due to their inability to post bail or due to a simple
lack of an enabling law on recognizance. It would give the members of a community a bigger and moreproactive role in reforming suspected offenders and upholding a fair system of justice. This is also a way
to address other problems confronting the criminal justice system such as protracted trials, prolonged
resolution of cases, lack of legal representation, lack of judges, congestion in jails, and lack of opportunity
to reform and rehabilitate offenders. This bill also seeks to expand the coverage of release on recognizancefrom the present six months up to 20 years’ imprisonment.

D. Diversion
Jails and prisons are simply not for children under the new law on juvenile justice. Instead of putting
them to jail, children in conflict with the law will be placed in diversion programmes without undergoingcourt proceedings, subject to the conditions imposed by law. It may be conducted at the Katarungang
Pambarangay , the police investigation or the inquest or preliminary investigation stage and at all levels andphases of the proceedings, including judicial level (Section 4 (i) of Republic Act No. 9344, or the Juvenile
Justice and Welfare Act). The diversion programme includes adequate socio-cultural and psychologicalresponses and services for the child. At the different stages where diversion may be resorted to, thefollowing diversion programmes may be agreed upon, such as, but not limited to:
1. At the Level of the Punong Barangay• Restitution of property;• Reparation of the damage caused;• Indemnification for consequential damages;• Written or oral apology;• Care, guidance and supervision orders;• Counselling for the child in conflict with the law and the child’s family;• Attendance in training, seminars and lectures on anger management skills, problem-solving and/or
conflict resolution skills, values formation, and other skills which will aid the child in dealing withsituations which can lead to repetition of the offence;• Participation in available community-based programmes, including community service; or• Participation in education, vocation and life skills programmes.
2. At the Level of the Law Enforcement Officer and the Prosecutor• Diversion programmes as specified above; and• Confiscation and forfeiture of the proceeds or instruments of the crime.
3. At the Level of the Appropriate Court• Diversion programmes as specified above;• Written or oral reprimand or citation;• Fine;• Payment of the cost of the proceedings; or• Institutional care and custody.
Community-based programmes on juvenile justice and welfare are instituted by the local government
units through the Local Councils for the Protection of Children, school, youth organizations and otherconcerned agencies. The local government units are mandated to provide community-based services which
respond to the special needs, problems, interests and concerns of children and which offer appropriate
counselling and guidance to them and their families. These programmes shall consist of three levels:
•
•
•

276

Primary intervention includes general measures to promote social justice and equal opportunity,
which tackle perceived root causes of offending;Secondary intervention includes measures to assist children at risk; andTertiary intervention includes measures to avoid unnecessary contact with the formal justice systemand other measures to prevent reoffending (Section 19 of Republic Act No. 9344, or the Juvenile
Justice and Welfare Act).

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

To ensure the effective implementation of the new juvenile justice law, a Juvenile Justice and Welfare
Council (JJWC) was created, chaired by an Undersecretary of the Department of Social Welfare andDevelopment and attached to the Department of Justice for administrative supervision. Co-ordination withthe following agencies is likewise mandated by law: (a) Council for the Welfare of Children (CWC); (b)Department of Education (DepEd); (c) Department of Interior and Local Government (DILG); (d) Public
Attorney’s Office (PAO); (e) Bureau of Corrections (BUCOR); (f) Parole and Probation Administration(PPA); (g) National Bureau of Investigation (NBI); (h) Philippine National Police (PNP); (i) Bureau of JailManagement and Penology (BJMP); (j) Commission on Human Rights (CHR); (k) Technical Education and
Skills Development Authority (TESDA); (l) National Youth Commission (NYC); and (m) other institutions
focused on juvenile justice and intervention programmes.
Figure 5

As illustrated above, in the prosecution of minors or children in conflict with law under RA 9344,
diversion proceedings are applied at all levels, even up to the judicial level.

E. Bail
As a mode for releasing a person usually under preventive imprisonment, bail can be granted by the court
as matter of right or discretion. Release on bail is available as matter of right in the following instances:1.

Before and after conviction in the Municipal Trial Courts;

2.

Before conviction in the Regional Trial Courts for offenses not punishable by death, reclusion
perpetua or life imprisonment;

3.

Before conviction in the Regional Trial Court for offences punishable by death, reclusion perpetua orlife imprisonment where the evidence of guilt is not strong.

After conviction in the Regional Trial Court for offences not punishable by death, reclusion perpetua orlife imprisonment, release on bail, usually for humanitarian reasons, is already discretionary.

IX. CONCLUSION
With the ever increasing prison population which is prevalent in most jails and prisons locally andinternationally, community corrections or alternatives to incarceration are now essential elements of a277

RESOURCE MATERIAL SERIES No.79

modern criminal justice system. While institutional corrections may continue to be practiced alongsideother alternatives, it should serve only as a deterrence or remedy of last resort for hardened criminals
who may pose a direct or immediate threat to the community. The questionable impact of incarceration asa tool for rehabilitation and treatment has long been seriously challenged. The physical, psychological anddehumanizing effects of unnecessary incarceration have been likewise raised as issues of major concern
and identified as a cause for incidence of recidivism. While probation and parole systems may continue tobe the traditional community-based alternatives to incarceration, there is still a need to further enhancethem or perhaps to develop other alternatives or intermediate sanctions that would provide greater levelsof supervision, control and treatment of offenders. If we can have more and more of these community-basedalternatives to incarceration then we can be certain that we will have fewer and fewer criminal offenders
channelled by our courts to jails and prisons.

278

139TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSOVERCROWDED PRISONS AND PRESENT PRACTICES AND
EXPERIENCE IN RELATION TO COMMUNITY-BASED ALTERNATIVESTO INCARCERATION
Jagath Abeysirigunawardana*

I. BACKGROUND
A. Overcrowding of Prisons and Non-Institutional Treatment of Offenders
Overcrowding of prisons is a common phenomenon experienced in many countries of the world today. Sri
Lanka is one such country. The prison population throughout Sri Lanka is growing rapidly. Facilities such as
sleeping accommodation, sanitary and bathing installations, medical and recreational facilities differ between
developed and developing countries. Hence, there does not appear to be common criteria on the required
accommodation or floor area or other conditions per prisoner.

Total Population of Prisons

Population of Convicted & Unconvicted Prisoners 1998 to 2007
10,000,000
9,000,000
8,000,000
7,000,000
6,000,000
5,000,000

Series1

4,000,000
3,000,000
2,000,000
1,000,00001997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Year
Source – Department of Prisons in Sri Lanka

B. Causes of Overcrowding in Prisons
There is a close relationship between the population growth of the country and number of crimes committed
in the country. Hence, there is a close relationship with overcrowding of prisons and population growth.
The overcrowding of prisons in Sri Lanka is caused by having to accommodate a large number of remandor on-trial prisoners. In Sri Lanka, the ratio of remand to convicted prisoners has been 4:1 or 5:1 for the last
10 years and about 80 percent of prisoners are on remand.
Most of the reasons for overcrowding of remand prisoners in Sri Lanka are the same as in many
countries of our region, and are classified below.
* Deputy Director General, Southern Range, Sri Lanka Police.

279

RESOURCE MATERIAL SERIES No.79

1.

The delay in bringing offenders to trial or legal delays.

2.

Trial, along with excessive bail or inadequate use of bail provisions.

3.

The legal system of many countries over emphasizes imprisonment as the most powerful weapon
against crime and carries imprisonment for far too many offences. As a result, courts resort toimprisonment as the first option (and many cases the only option) instead of it being treated as thelast resort. This tendency on the part of the courts may sometimes be seen as reflecting the attitudeof the general public who may demand severe punishment as a warning to would-be criminals.

4.

Among the convicted prisoners admitted to Sri Lanka prisons, the highest number are sentenced
to less than one year. In 2007, these short-timers made up 63% of the convicted prison population.
From the very fact that they were given short-term imprisonment, it is clear that most of them could
not have been found guilty of serious offences for which alternative punishments to imprisonment
could not have been given.

5.

Admission of a large number of offenders to prison for non-payments of fines is also contributing
to the problem of overcrowding. Out of a total of 31,306 convicted prisoners admitted to prisons in
Sri Lanka in 2007, 15,408 or 49.2% were fine defaulters, whom the courts initially thought did notdeserve a prison sentence.

6.

Admission of persons both as remandees and convicted prisoners for drug-related offences. The
percentage of drug offenders (convicted) in Sri Lanka prisons in 1996, which was 41.4, has slightly
decreased to 36.7 during the past decade.

7.

Use of modern technology and better and widespread policing facilities have increased the rate ofdetection of crime by police resulting in more convictions and large numbers being admitted to prisons.

Prison overcrowding leads to serious problems for prison authorities. It is related to serious healthhazards and disturbs penal rehabilitation and reformation programmes. As a result, security problems,
terrorism and subversive actions may occur. If prison is overcrowded hard and soft criminals interact witheach other, which may lead to connect mild offenders to hardcore criminals. Overcrowded prisons causestress for prison officials and further strain prisoners as they live in unacceptable conditions which fail toadhere to the United Nations Standard Minimum Rules for the Treatment of Prisoners.
In Sri Lanka we have very few non-institutional treatment methods, and those methods have not beeneffective due to administration problems and provisions. Therefore it is time to improve the treatment ofoffenders through enhancement of community-based alternatives to incarceration.

II. TRADITIONAL ALTERNATIVES TO IMPRISONMENT
Many countries have probation, parole and community service which are commonly known as traditional
alternatives to imprisonment. These non-institutional treatment methods are widely used in many
developed and developing countries.
The non-institutional measures are mostly community based corrections. The concept has evolved with thethinking that correction, if linked to the community, will be less costly, more humane and more effective thanimprisonment in dealing with offenders convicted of minor offences. There is a need in the field of community
corrections for a systematic and orderly development having due regard for local conditions and local needs.
In developing such a system it is necessary to ensure that no individual who does not require incarceration
for the protection of others is confined in an institution and that no individual is subjected to more supervisionor control than required. On the other hand creation of community based programmers should ensure thatthey respond not only to the needs of the offenders but also the interest of the community. If they are notadministered properly it will amount to the criminal justice system going soft on crimes and criminals.
In Sri Lanka, we have only a few non-institutional treatment methods and even these few have not beenvery effective due to lack of administrative provisions and disinclination on the part of the courts to passsuch sentences.

280

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

A. Parole or Release on Licence
The basic philosophy of parole is that a prisoner shall not be held any longer than necessary as it isdetrimental to his or her reformation and also an unnecessary expense to the State. Parole is a procedure
whereby a prisoner is released from an institution at a time considered appropriate by Parole Board, prior tothe completion of his or her full sentence so that he or she may serve the balance of the sentence at large
in society. The offender is also subject to the condition that he or she will be returned to prison if he or she
fails to comply with the conditions governing his or her release.
This scheme gained momentum over the years and remains at present one of the very successful noninstitutional measures in our country. From 1997 to date 1,199 prisoners have been released. An average of
110 prisoners are released every year. We have had only 89 violations during that period.
1. Practices in Sri Lanka of Treatment of Offenders(i) Remission
All prisoners are now allowed a normal remission of one third of their sentence for good conduct
and industry. Prisoners who have completed one year at an Open Prison Camp are eligible for a special
remission of one month of their sentence for each year they serve.

(ii) Special Amnesty
While convicted prisoners who were serving long term sentenced were given special reductions ofsentences, some prisoners who were serving short term sentences were released on account of special
occasions like Independence Day, Wesak Full Moon Poya Day, etc.

B. Release of Prisoners on Licence Scheme (Social Integration)
The “Licence Scheme”, introduced in Order 1969, may be considered a progressive step in dealing withoffenders. The system of release of prisoners on licence under para 11 of the Crime Prevention Ordinance
was based on a decision by the then Minister of Justice. The members of the first Licence Board were Asst.
Secretary, Ministry of Justice, the Senior Prison Medical Officer and the Commissioner of Prisons appointed
by the Minister of Justice. The first meeting of the Board was held on 4 October 1969. At the inception, themode of selection for release under licence scheme depended on the term of imprisonment under which
prisoners sentenced to eight or more years of imprisonment who have served half that term were eligible
for the scheme sustained by good conduct, character, prison records and rehabilitation susceptibilities. In thefirst batch they selected seven prisoners who were released on 15 November 1969.
The Licence Scheme underwent several modifications from time to time and now functions under theCommissioner of Prisons Circular no 35/92W/08 of 1 September 1992.
1.

Prisoners serving a sentence of two or more years but less than five years and who have completed
a term of one year.

2.

Prisoners serving a sentence of five or more years but less than ten years and who have completed aterm of two years.

3.

Prisoners serving a sentence of ten or more years but less than 15 years and who have completed aterm of three years.

4.

Prisoners serving a sentence of 15 or more years but less than 20 years and who have completed aterm of four years.

5.

Prisoners serving a sentence of 20 years or more but less than 25 and who have completed a term of
five years.

6.

Prisoners serving a sentence of 25 years or more and who have completed a term of six years.

In the case of prisoners who qualify under the above requirements, social reports are compiled by the
Welfare Officers and along with recommendations of the Superintendent of Prison(SP) are submitted to theSecretary, Licence Board. The SP (Welfare) is the secretary ex officio . Licence Board meetings are held twice281

RESOURCE MATERIAL SERIES No.79

a month at the prisons headquarters and the prisoners according to their qualifications as above are produced
to the License Board together with social report files and only those eligible prisoners are recommended to
the Hon. Minister by the Licence Board for release on licence. The rest are withheld for reconsideration.
A prisoner released on the licence scheme is conditionally allowed to serve the balance of his or her sentence
under the supervision of a Welfare Officer and is reintroduced to society to lead a normal life with his or her
spouse and children and parents. A prisoner so released will be guided by the Welfare Officer to live a decent
life and he or she will be known as a “Licensee”. The Welfare Officer provides a curative target programme
pertaining to the Licensee at the inception which is result-oriented during the licence period. During the licence
period the Welfare Officer submits his or her quarterly progress returns, accompanied by the Senior Welfare
Officer’s observations, to the Licence Board where they will be discussed and the necessary guidance offered.
If a Licensee transgresses the contracted conditions, attempts are made to admonish him or her
through advice and warning by a Welfare Officer and if such attempts fail the Licence Board is consulted
for instructions. If that measure too is ineffective the licence granted to him or her will be rescinded andthe balance full term of imprisonment from the date of release is reemployed. The case may be referred
to a magistrate if necessary and a further term of six months of imprisonment may be imposed. However,transgressions so far have been minimal. This manner of relief is not a right of a prisoner but a privilege.
The member released on license scheme since 1997 to 2007 and the number of licenses revoked forviolation of conditions are as follows.
Year
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007

Work Release
200
199
212
171
249
230
210
559
320
553
1,068

Home Leave
315
330
373
322
21
174
267
528
364
496
547

License Scheme
152
99
116
112
18
47
108
104
153
124
208

Source - Department of Prison – Sri Lanka

C. Work Release Scheme
Characterized by the motive of facilitating the penal stage of a prisoner to be spent more fruitfully andwith flexibility, the work release scheme was introduced in 1974. The project was approved by the Ministerof Justice in terms of Clause 11 of the Crime Prevention Ordinance. The selection of prisoners for thescheme is confined to those serving a sentence of two or more years and those due to serve less than two
years of the sentence. The objective of the scheme is to accustom the prisoner to conditions and challengesof the society he or she re-enters once set at liberty from jail. The plentiful bestowal the scheme extends tothe inmate after release is the employment opportunity.
The prisoners are engaged in such activities as gardening or clearing under the scheme at state
institutions on weekdays from 7.30 AM to 4.00 PM (except public holidays). A retired prison officer is incharge of their security for which service he or she is paid by the institution concerned.
The prisoners so engaged are provided with the midday meal and an allowance of Rest 185/- per day
by the institution. The income so earned is credited to their account at the People’s Bank and is gainfully
invested after release. This project originated at the one prison has now expanded to the three main prisons.

282

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

The project has benefited nearly 25 state institutions in 2007, the number of prisoners engaged was 230
and their total earnings amounted to Rs.4, 957,205/-.
The current statistics on prisoners engaged in work release from 1997 to 2007 are shown below.
Prisoners Engaged in Work Release scheme 1997 to 2007

Year
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007

No of Prisoners Engaged
on Work Release
200
199
212
171
249
230
210
559
320
553
1,068

No FoundUnsuitable
8
15
12
8
10
15
22
45
44
33
29

Total Amount Earned
for the year (Rs)
1,149,653
1,365,836
2,047,301
1,976,186
3,387,876
3,459,993
2,625,641
3,280,110
3,276,166
3,659,026
4,957,205

Source – Department of Prisons – Sri Lanka

This salutary and successful scheme has served as a catalyst for the reintroduction of inmates to society
as useful and reformed citizens.

D. Home Leave
Prisoners who become eligible for release on license and prisoners who have served at least six months
at an open prison camp become entitled to visit their homes unescorted for a maximum period of seven days
at a time once in six months.
Prisoners Sent on the Home Leave Scheme, 1997 to 2007

Year
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007

No. Sent on Home Leave
Male
Female
Total
302
13
315
307
23
330
366
7
373
315
7
322
21
21
171
3
174
265
2
267
523
5
528
361
3
364
490
6
496
537
10
547

Male
1
8
16
5
3
3
3
9
9
14

No. Violated Law
Female
Total
1
8
16
5
3
3
3
9
9
14

Source - Department of Prison – Sri Lanka

Five hundred and forty seven prisoners were sent on Home Leave during the year bringing the total to 3,584
since the introduction of the scheme in 1974. There were 16 violations of the trust placed in those prisoners.

283

RESOURCE MATERIAL SERIES No.79

III. PROBATION SYSTEM
The probation system in Sri Lanka commenced on 12 March 1945, under the Department of Prisons. It was
inaugurated with ten Probation Officers who were paid salaries by the Government. However, after 1919 theprobation system had been tried in Sri Lanka from time to time through Voluntary Probation Officers. In 1944 theProbation Ordinance was enacted to keep offenders under Probation. Accordingly, by 1960 the probation system
had been extended throughout the island by appointing Probation Officers to all Judicial Districts in the Island.
Since the probation system was functioning under the Department of Prisons, it was known as the Departmentof Prisons and Probation with the extension of the probation systems. The Children and Young Persons
Ordinance No. 48 of 1952 was enacted and enforced in Sri Lanka. A separate Department, titled the Departmentof Probation and Child Care Services, was established on 1 October 1956, bringing the probation functions too
under its purview. The objectives of the Department as envisaged by the Government are as follows.
With the establishment of Provincial Council system in Sri Lanka, some administrative powers werevested with the Provincial Councils. Hence some of the functions of the Department have been assigned toProvincial Commissioners of Probation.

A. The Objectives of Probation Child Care Services as Envisaged by the Government
1. Limiting the imprisonment of offenders by rehabilitating them using probation strategies with a viewto re-integrating them into society as good citizens.
2.

Taking very lenient and mitigated judicial actions in respect of children and young persons.

3.

Provision of requisite service to needy children and young persons.

4.

Offering such children as far as possible the opportunity to live with their parents and provision ofdue protection.

The following chart shows the number of offenders rehabilitating under the Department of Probation andChild Care.

11
84

Over 24 Years

4
14
34

Between 20 - 24

5

3
1
82

31
9
9
2
21
1

Between 15 - 19

4
2
1
1
8

Below 15 Years

3

46
20
7
1
4

2

OthersSexual Abuse/
Tape/Brothels

142
35
45
19
63
17
33
16
370

Sale & use of
Liquor & Drugs

Western ProvinceSouthern Province
Central Province
North Western Province
Sabaragamu Province
Uva Province
North Central Province
North East Province
Total

Straying

Province

Theft, Looting &Burglaries

Probation Offenders - 2005 (Year)

40
28
24
19
51
15
19
26
222

122
22
29
4
41
1
19
16
254

36
4
3

27
12
6

4
2
2

3

51

48

Source - Department of Probation & Child Care – Sri Lanka

B. Main Functions of the Probation and Child Care Department
1. Moulding the character and rehabilitation of adults, young persons and juvenile delinquents referredto the Department.
2.

284

Directing children not obedient to their parents, cutting school, stubborn and engaged in anti-social
activities even though they have not committed any offence considered a crime under the Penal Code.

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

3.

Giving protection to and looking after the orphaned, abandoned, destitute and those subject tocruelty and faced with various disasters and subject to abuse.

4.

Investigation supervising and providing aids to voluntary organizations and institutions engaged inchildren’s welfare services.

5.

Taking resources to lessen and prevent the number of children likely to break down in life due topoverty or other social requirements.

6.

Implementation of the Convention of the Rights the Child adopted by the United Nations and taking
necessary steps to protect the Rights of the Child.

The chart below describes the offenders investigated during the year under review.

Attempt toCommit suicideFM
41 189
9
2

F
2
7

F

4
2
10

M
91
9
28
3
45

3
6
7
28 186

14
11
2

1

M
50
6
3
2
22

6

1
9
78 206

1
11

4
9
96

M

F

1

2
1
30
33

19
20

25
25

OthersPsale & Use of
LiquorF
6

Acts of terrorism

Prostitution &Straying

Western
Southern
CentralNor/ West
Sabaragamu
Uva
North Central
North East
Total

F
M
F
M
9 391
9 18
5 44
1 15
10 62 12 14
8 33
2
1
5 60
4
4
2 34
1
5
3 68
20 24 71 54
62 716 100 111

Seale and use of
DrudgeProvince

Physical Injuries

Theft, Looting &Burglaries

Offenders Investigated During the Year Under Review (Juvenile/Youth/Adults) - 2005

M

F
M
62 96
3 18
1 14
6
1
2
16 17
16
8
1
3
29 20 33
30 133 183

Source - Department & Probation & Child Care – Sri Lanka

IV. COMMUNITY SERVICE ORDERS
As an alternative to a prison sentence courts may order an offender who has been convicted of an offence
punishable with imprisonment to carry out a community task for a number of hours stipulated by the Court
within a certain period of time. If the offender fails to carry out his or her work commitments, he or she will
be dealt with by the Court by imposing any other appropriate punishment. Community Service by order of
the Court is currently practiced in several countries. The Community Service Orders Law was introduced in
Sri Lanka by the Administration of Justice Law No. 44 of 1973. However, due to lack of rules regarding theimplementation, the courts ceased to impose the sentence. Action has now been taken to establish a separate
Department under the Ministry of Justice to supervise carrying out the sentence and legal provisions havebeen made under Community-Based Correction Act. It is therefore expected that Community Service Orders
will be effective in Sri Lanka as a useful non-institutional mechanism in the near future.

V. INTRODUCTION OF NEW LEGISLATION ON GRANTING OF BAIL
In Sri Lanka, attempts also have been made to reduce the pressure of overcrowding in the recent past by
introducing new legislation. The introduction of the Release of Remandees Act No. 18 of 1991 was for thedual purpose of reducing prison overcrowding and granting relief to those persons held in custody for theirinability to furnish bail. Certain bail regulations made under the Emergency Regulations empowered prison
authorities to release some categories of remand prisoners who had failed to furnish bail though ordered by

285

RESOURCE MATERIAL SERIES No.79

Courts, upon their signing a bond.

VI. INTRODUCTION OF SUSPENDED SENTENCES
The introduction of suspended prison sentences under the Code of Criminal Procedure Act No. 15 of1979 for certain categories of offenders helped reduce the admission of a considerable number of convictedprisoners. Presently most of the law level courts have passed this suspended sentences on offenders who
committed minor crimes, where there is no grievous impact on society.

VII. REQUIREMENT OF INTEGRATION OF ALL AGENCIES WITHINTHE CRIMINAL JUSTICE SYSTEM
The importance of an integrated approach involving all parts of the criminal justice system, in solving most of
the problems of prison including overcrowding, has been accepted by many countries today. However, in practice,each agency works in separated and isolated from each other. In Sri Lanka, police, prisons and probation comeunder three separate Ministries. The Courts function independently under the Judicial Service Commission.
There is very little or no co-ordination existing between the different agencies though they work to achieveinterrelated objectives. Therefore, the problems of overcrowding of prisons become the exclusive problem of thecorrectional institutions. Having realized the roles the other agencies can play in reducing the prison population,such as the police expediting the investigations, and courts expediting the trial process and utilization of noncustodial methods in a greater measure, workshops, Seminars and Conferences have been conducted involving
the different agencies through the initiative of the Department of Prisons and Ministry of Justice. Therefore, it isnecessary to have a constant dialogue with all agencies within the criminal justice system. When making policies
for the country at least policy makers need discuss the matter with each other to reach a consensus.

VIII. CONCLUSION
The problem of prison overcrowding, which has direct links with the increase of population of a country,
and the increase of the crime rate resulting from its socio-economic factors, will continue to worry thenations of the world unless some meaningful steps are taken to control it. No country can continue to expand
its prison capacity in proportion to the increasing rate of offenders. In this regard it is very important tocreate a public awareness that imprisonment is not the only effective penal sanction for all types of offence.
On the other hand where corruption within the criminal justice system exists, alternatives toimprisonment amount to additional mechanisms of control and abuses of power such as bribery and denialof justice. Non-custodial measures should be implemented in parallel with pre-trial diversion measures suchas caution and mediation mechanisms to ensure that the over-use of arrest and imprisonment are addressed
systematically and holistically.
Non-custodial measures include that of discharge (absolute and conditional), suspended sentences, fines,
binding over, compensation orders in the mediation process, attendance centre orders, supervision orders(with or without requirements), probation orders, remission of sentences and grant of amnesties, parole ofrelease on licence, work release, and community service orders, etc.
Community service is an order of the court whereby the offender is offered the opportunity ofcompensating society for the wrong he or she has done by performing work for the benefit of the community
instead of going to prison.
In Sri Lanka, the daily average population of convicted and un-convicted prisoners was 24,255. According
to Table 1 the number of prisoners will increase day by day according to the prevailing socio-economic
situation in the country. As a result, the cost of prisons increases day by day. Hence, there is a social impact
prevailing in the country due to a non-effective prison system.
In this circumstance, non-institutional treatment methods for prisoners are urgently required considering
the economic and social factors of the country. Therefore, relevant authorities and policy makers should
pay serious consideration to reviewing the criminal justice system, focusing on the improvement of thetreatment of offenders in community-based alternatives to incarceration.

286

139TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

MEASURES AGAINST OVERCROWDING IN URUGUAY’S JAILS, PRISONS
AND REFORM CENTRES
José Enrique Colman*

I. INTRODUCTION
The difficult situation that has prevailed in the Uruguay penitentiary system for several decades,demonstrating a progressive deterioration and reaching the present the actual numbers of imprisonment(which fall far short of international standards), has determined the generation of different initiatives
that today appear with the purpose of contributing to the reduction of the number of inmates and better
management of the penitentiary system, trying enhance community–based alternatives to incarceration.
In almost all the countries of Latin America the penitentiary systems are heavily overcrowded and thenumber of prisoners increases much more quickly than the construction of new jails. In the short term, this
could become an untenable situation.
In Uruguay, by 2015, we could expect double the number of prisoners we have today, but the situation isprobably similar in all of the countries of the region.
In our country the prison population has grown year by year, leading to overpopulation of the jails as
mentioned above. Various factors are suggested as contributors to this phenomenon. We can mention theincrease in social violence, due to the deterioration of moral values, and economic, educative and cultural
factors. These are only some of most outstanding factors and the discussion of values, mainly morals relating
to the causality of the crime and its increase, is a wide discussion as many arguments are subjective.
Our society is immersed in the consumption of an incredible amount and variety of drugs; the worstof them is coca paste. It would seem there are generations that already are lost, for whom it is impossible
to establish a moderately coherent conversation. How to rehabilitate these people, and in this way, tocontribute to public security, and therefore society?
The difficult reality is that released inmates sometimes spend just a few days enjoying their freedom
before backsliding and committing other crimes. They return happily to the prisons, because their friends
and relatives are in the jail and they will meet again.
Although it seems cruel, this is the reality, not for all but for the great majority, and we wonder ourselves
where are we failing, because according to the statistics of other countries the situation is international,
without regard for the budget, status of jails as private or public, or type of government.
Different Uruguayan governments, mainly from the end of the dictatorship in 1985, have voted a seriesof legal initiatives to avoid the growth of the prison population, gradually choosing alternatives to replace
imprisonment as the main social punishment.
In the next pages we will transcribe the main legal norms of our jurisdictional procedures. In some cases
we will see conjunctural laws that were passed to clear legal prisons and other decisions that led to thesubstitution of prison by other alternatives like reduction of punishments, domiciliary arrest, penalty fines,
communitarian tasks, fulfillment of only a part of the sentence, enhancement of institutes like the National
Patronage of Jailed and Released Inmates in order to reintegrate released offenders, productive activity in* Executive Co-ordinator, Executive Co-ordination Department, National Buraeu of Jails, Penitentiaries and Rehabilitation
Centres, Uruguay.

287

RESOURCE MATERIAL SERIES No.79

jails, etc., and the last alternative, the Law of Redemption of Penalty, will be outlined below.
Also, because the problem is dynamic and the procedures suggested are not yet sufficient we aredesigning new alternatives and voting on legal possibilities to continue to develop other types of ideas likethe use of electronic bracelets, probation officials, half way houses, etc., which are at present in the study
and development stage.

II. RELEVANT LAWS 1
Uruguayan society has evolved over its two hundred year history and this applies also to the law andlegal norms that govern the different aspects of the society, including the penitentiary system.
We must first address the Constitution of the Republic, the fundamental Law of Uruguay, which observes
deeply the subject of this paper. Articles 26 and 27 give the primary framework from which the other laws
outlined below are derived.

A. Constitutional Dispositions“Article 26. - Capital punishment will not be applied to any person. In no case it will be allowed that thejails serve to torture; they are just to assure the indicted and condemned, trying for their reeducation, anddeveloping the aptitude for the work and the prophylaxis of the crime.”“Article 27. - In any stage of the trial which judges preview and from which there can be no imprisonment, thejudges will be able to free the inmate for appropriate bail according to the law.”

B. Exceptional and Conjunctural Laws
1. Amnesty Law
In 1985, when Uruguay again became a democracy after a long period of dictatorship, the new government
passed laws that tried to fit the national reality and among others, as we said in the Introduction, approved
the “Law of Amnesty” where diverse benefits were granted, which, besides correcting illegal situations, led
to the humanization of the system. This was so was approved law N º 15,737 of 1985. Included below are only
some articles which begin to explain the legal evolution that has occurred from that time to the present time.
“Article 21. - The Supreme Court of Law will be able to give anticipated freedom to the condemned whoare private of freedom in the following cases:1º) If the sentence is more than two years of imprisonment and the person has fulfilled half of theimposed punishment.
2º) If the sentence imposed was prison or fines.
3º) If the convict has fulfilled two thirds of the punishment imposed by the Supreme Court of Law it willachieve the freedom anticipated. It will only be able to deny, by founded resolution, in the cases ofmanifest absence of signs of rehabilitation of the condemned.”
According to this law more than 800 inmates were freed, and there was a temporary significant decreasein the prison population.

C. Law of Anticipated and Provisional Freedom
With the present government, another law of exceptional type was approved that also allowed the country
to clear the different prisons transitorily. This law is Law Nº 17,897, “Anticipated and Provisional Freedom.
Exceptional Regime.” Article 2 of this law gave powers to the judge to grant anticipated freedom of theinmate where the inmate has fulfilled:“a) Two thirds of the imposed punishment, and the same is superior to three years of penitentiary.”“b) When they have fulfilled half of the punishment imposed in the case that the imprisonment preview
1 Please note that all translations are provided by the author.

288

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

was of up to three years of penitentiary.”

D. Transitory Exits
This law establishes the possibility of transitory leave for an inmate who conserves his habits of work
which will help in his social reintegration.
“Article 62. - For the concession of the transitory leave, it will be required to own good behaviour and it
could be granted every time the inmate, personally or through his Defender, present a written request in the
Direction of the Jail where the inmate is located.”
In a term that will not exceed 20 days from the presentation of the request, the prison authority will
formulate a report to the judge of the cause. If the prison report were opposed to the concession of thetransitory leave, because the inmate does not have good behaviour or for another reason, the prison
authority will inform the judge of the cause, who will solve, in founded form, the previous opinion of theprosecutor. If the report of the prison authority was favourable, they will have to establish, in precise form,
the regime to be followed by the inmate:(a) The place or maximum distance to that the inmate will be able to move.
(b) The norms of conduct that the inmate will have to observe during the leave, as well as the restrictions
or prohibitions that are considered advisable.
(c) The time of duration of the exit, the reason and the degree of security that is adopted.
(d) Any other requirement or condition if it is considered necessary for the best fulfillment of the regime.
The report will be presented by the prison authority to the judge with competency. The copy will be
sealed and the day and hour of presentation are noted. The Actuary of the Court, under the most severe
responsibility, will have to put the report to the office of the judge in immediate form, who, without further
proceeding, will give view to the prosecutor, within a term of five working days. Upon return of the file, thejudge, who will have equal term and under his or her more serious responsibility, will be sent notice of the
proposed regime or the modifications pertinent to the case.
The decision is not appealable. If transitory leave is denied the inmate cannot present a new request for 90
days.
An inmate granted transitory leave who delays his or her return to the establishment, without justified
cause, will receive an increased punishment at the rate of two days for every day of delay. The prison authority
will have to inform the judge, within 10 days, of the moment at which the inmate returns the establishment.
To further the aims of the legislation, the prison authority will inform the Directors of the Penitentiary
Establishments of the National Direction of Jails, Penitentiary and Departmental Headquarters andEquipment Rehabilitation Centers in its respective jurisdictions of the procedure.

E. Indicting Without Prison
Another law that has had remarkable influence on the present legal regime is “The Law of Indicting
without Prison” from 1989. It qualifies judges in certain circumstances not imprison people who satisfy
certain requirements and is still effective today. It is law Nº 16,058:“Article 1º. - the preventive imprisonment will not be applicable when concur, simultaneously, thefollowing circumstances:(a) If the offence committed will be presumable that will not have to have penitentiary punishment;(b) If, according to the Magistrate, the records of the indicted, their personality, the nature of theimputed offense and the circumstances will presume that the person will not avoid the trial;

289

RESOURCE MATERIAL SERIES No.79(c) If to criterion of the Judge, and the examination of the circumstances mentioned in the literal (b) it
will be possible to be inferred that the indicted will not incur in new criminal conduct.
Despite the items (a), (b) and (c), the judge will decree preventive imprisonment, in all the cases, if theperson has a background or previous cause in proceeding so requiring.

F. More Severe Sentences for Certain Types of Crimes
1. Law of Citizen Security
In 1995, the Law Nº 16,707, “Law of Citizen Security”, was passed and relevant articles are included below.
“In the cases of indicting with prison, if the inmate registered one or more pending criminal causes,discharge the freedom of the inmate will have to be founded, including an evaluation on the danger of theagent and his or her possibilities of social reintegration.”
This law created new criminal figures, increased the punishment in some cases and diminished it inothers, according to the new social reality and criminal typology and began to restrict judges’ power togive liberties, which increasing the incarceration rates since many crimes were transformed into nondischargable offences and the judges do not have another option than to imprison the offender.
The motivation of the present law, among others, was a situation of social alarm caused by the increaseof certain violent crimes and drug trafficking that demonstrated the quick deterioration of the moral basis of
Uruguayan society.

G. Domiciliary Arrest
Another important step was the provision of Domiciliary Arrest in certain cases, such as those withserious illnesses or aged people.
“Article 8º. - (Provisional Safety for suspected and convicted offenders who are ill or in other special
situations). If the suspect, the indicted, or the condemned during the fulfillment of his or her sentence arepresumed to be in some of the states anticipated by Article 30 of the Penal Code (Madness), it will be possible
to change the incarceration for his or her internment in a special establishment, subject to expert opinion.
If one person be in serious disease or special circumstances that makes his immediate internment inprison evidently detrimental, the continuity of the deprivation of freedom in a center of imprisonment
in which one is, the Judge will be able, previous the expert works that he or she considers pertinent, toprepare the domiciliary prison or other insurer decision.
Equal criterion will be adopted with respect to the situation of the woman in the last three monthsof pregnancy, as well as during the three first months of maternal lactation. In such case, the judge will
previously require an expert report from the Forensic Technical Institute about the convenience or necessitywith respect to the adoption of another insurer decision.
The person indicted or punished with domiciliary arrest will be able solely to leave her house to carryout pertinent medical checkups on her state and condition. The breach of this disposition will imply theimmediate revocation of the benefit.
Having stopped any one of the hypotheses contemplated in the present article, the processing or punished
if so, will have to return to the prison where it fulfilled the measurement or the sentence precautionary.”“Article 9º. - (Domiciliary Prison). The Judge will be able to have the domiciliary prison indictedpeople or the condemned majors of 70 years, when it does not involve risks, considering especially thecircumstances of the committed crime. This last disposition will not be applicable to the accused and thecondemned who has committed the following crimes:
The crime of aggravated homicide;
Crimes of violation;

290

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

The crimes anticipated in the Statute of Rome of the International Penal Court (Law N° 17.510, of 27
June 2002).”

III. ALTERNATIVES TO IMPRISONMENT
In 2003, social dynamics and the governmental preoccupation with the prison situation motivated a newlaw, Nº 17,726, whereby alternative measures to imprisonment can be imposed as outlined below.
“Article 1º. - Preventive imprisonment will not be applicable in minor crimes or crimes sanctioned withfine, suspension or incapacitation.”“Article 2º. - A judge cannot decree preventive imprisonment of an indicted person when prima facie heor she understands that the behaviour studied is not punishable by imprisonment. In that case some of themeasures in the following article will be able to replace preventive imprisonment. The substitution will not
be decreed when the gravity of the facts or the damage caused by the crime deserves imprisonment. In all
the cases the opinion of the Prosecutor will be required, that to such effect, the alternative measure will notincrease the risk to the population.”

A. Substitute for Preventive Prison“(a) Periodic presentation in the Court or Police Station.
(b) Prohibition on driving vehicles for a term of up to two years, when found guilty, in occasion of thetransit carrying, against the life, physical integrity or would have brought about important damage
in the property to criterion of the Judge who will retain the license driver, and he or she willcommunicate to the local authorities his or her decision.
(c) Interdiction: the prohibition to concur to certain places, commerce or places, including the own one;or the obligation to remain within certain territorial limits.
(d) Medical or psychological attention of support or rehabilitation: the obligation to be under certain
treatment by a maximum term of six months, if the treatment were ambulatory and of two months if
it required internment.
(e) Voluntarism or communitarian services: the obligation to fulfill the tasks that are assigned to him
or her, having in account its aptitude or suitability, public bodies or nongovernmental organizations,whose aims are of evident interest or social utility. These measures will not be able to exceed
the two hours per day or twelve hours per week and its maximum term of duration will be of ten
months.”The Supreme Court of Law will establish the general criteria that will have to fulfill the institutions tothat it refers this literal one, with the object of determining the remunerations that will be pleased by thework fulfilled by the indicted and that will be deposited in a bank when the person finishes as his or her deal.
The judges will be able to also commit the fulfillment of this measurement to the National Patronage of
Jailed and Released or to departmental commissions with similar assignments in the Republic.
“(f) Domiciliary arrest: the obligation to remain at home, without leaving its limits, for a maximum termof three months or to remain in it during certain days or hours by a maximum term of six months.
(g) Arrest in hours of rest: the obligation to remain the workable days during the hours of rest underarrest for a maximum term of six months. The arrest will have to be fulfilled in the Home of theReleased in the charge of the National Patronage of Jailed and Released, or where it indicates it to theJudge.
(h) Arrest of weekend or weekly rest: the obligation to remain a continuous day and a half under arrest
that will agree with the lapse of weekly rest of the indicted, that will be fulfilled in a Police station,
for a maximum term of six months.

291

RESOURCE MATERIAL SERIES No.79(i) Any other substitute obligation proposed by the indicted and accepted by the Judge, who fulfills the
purposes of this law or supposes a suitable repair of the caused damage.
Article 4º. - It will be procured that the substitute measures do not damage or if it do could be as
minimum possible in the labor or educative activities of the indicted.
Article 5º. - In case of impossibility of the fulfillment of the measurement by cause non imputable to theindicted, the same will replace or others without increasing its gravity on the other.
Article 6º. - The substitute measures do not come in the cases from recidivism.
Article 7º. - The measures of this law refers the article, will be only revoked in the serious cases ofviolation of the imposed duties.
Case will be considered burdens the existence of a later processing.
In this case the fulfilled measures will be computed with the object of the preventive one to suffer in thefollowing way:(a) Interdiction (literal b) and d)): a day of prison by every five days of the fulfilled measurement.
(b) In case of ambulatory treatment: a day of prison by the weekly treatment will be computed.
(c) Communitarian services: a day of prison by every day indeed worked.
(d) In case of Domiciliary Arrest with absolute prohibition to absent itself: a day of prison by every dayof arrest; in case the arrest had been partial: a day of prison by every ten hours of continued arrest.
(e) Arrest in hours of resting: a day of prison by each day of arrest.
(f) In case of arrest of weekend or weekly rest: two days of prison by each opportunity of fulfillment of
the measurement.”

IV. FINES“Article 9º (Substitute Punishments). - When the punishment be with prison (not penitentiary punishmentplus two years imprisonment expected) it can be replaced by some of the measures mentioned before.
Article 10 (Application). - When in the sentence was not solved the freedom can be changed by thesubstitute measure that corresponds whenever the punishment to fall does not surpass the three years ofpenitentiary. The punishment will not be applied for people with files or habitual. In such cases the Judge,
when determining the punishment, will settle down the value of day-fines.
Article 11. - When sentence definitive imposes prison sentence put to the indicted it is possible theconditional suspension of the punishment (article 126 of Code Penal), whenever the person is a primary thathas been processed without prison or with the substitute measures anticipated in this law it has fulfilled andthem, except for the existence of serious cause properly founded. If the sentence will impose a punishmentof up to three years of penitentiary the Judge will be able to grant the suspension conditional of the pain,
taking care of the requirements of the previous interjection and previous report of the Forensic TechnicalInstitute, basing its decision. In both cases the term of monitoring by the authority will be of a year.
Article 12 (Determination of day-fines). - The value of day-fines will be determined by the Judge between
0.10 UR (a tenth of a re-adjustable unit) and 5 UR (five re-adjustable units), considering the economic situationof the indicted, the goods that it owns, its income, their aptitude for the familiar work and his personal
obligations.
Article 13. - … the punishment will be eliminated at the rate of day-fines by every day of pain,

292

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

discounting the days of prison indeed undergone, or the fulfillment of the computed substitute measure.
Article 14. - … If the payment of a fine condemns, the indicted will be able to do it effective of thesums that had been deposited in guarantee of payment of day-fines, or to be paid until in eighteen monthly
payments, those that will be able to be reduced, in agreement with the economic possibilities of thecondemned. The Judge will be able, exceptionally, to reduce his amount when the condemned credits that heor she has gotten worse of fortune…[ ].
The control of the payment will be of account of the Office Actuary who, without needing the judicial
mandate, will come to obligate to the condemned to the payment of the owed thing whenever the payment islate in more than one.
Article 15. - In the cases of conditional freedom, the term of monitoring of the authority will be of three
years and could be reduced up to two by the Judge of execution, office or to order of the condemned.
Article 16. - The sums that are collected by the payment of punishment as well as by concept of day-fine,
will be deposited for the State.”

V. CAUTIONS (BAILS AND PAROLE)“203.1. - When the Court has the cease the freedom deprivation, or establishes the cease of otherlimitations to the physical freedom of the imputed, he will have to require to him that he gives security
interest in property or personal of the fulfillment of the imposed obligations.
203.2. - In order to determine the quality and the amount of the bail, the Court will make the estimation
so that it constitutes an effective reason and it shows that the indicted abstains to infringe the imposed
duties and appears every time it is required of him or her.”A. Bail“204.1. - The Bail consists of the affectation of determined, movable or immovable goods that, inguarantee of the sum determined by the Court, it is realized by imputed or the another person. It will be able
to constitute in the form of deposit in money or other quotable values or by means of granting of mortgage
or pledges or any other form with guarantee that is effective and sufficient to criterion of the Court.
204.2. - When the bail consists of mortgage, the writing document will be granted by notary public
proposed by the imputed. In order to authorize it, he will have ten days fixed as of the date of the decreeof its designation. Passed this term, the Court will be able to designate to another notary public. The
Registries Public will have to issue in urgent form asked for certificates.”

B. Personal Warranty“205.1. - The personal guaranty consists of the obligation that jointly with the imputed assumes one ormore people proposed by the person as warranty with they goods to pay the sum that the Court fixes.
205.2. - It can be constituted in bondsman who has capacity to contract and is, in addition, honest person
and with economic solvent, verifying this topic by formal document exhibition, that the secretary or actuary
will describe as the Court.”

C. Parole“Article 206 (Parole). - When the imputed is well-known poor or destitute, instead of the other items theJudge can ask him his Parole, that will consist of its promise to faithfully meet the conditions imposed by the
Court.”
VI. PUNISHMENT REDEMPTIONIn the same law that established the Regime of Transitory Exits also approved the “Regime ofRedemption of Punishment”, which allows inmates to redeem punishment in the following way:

293

RESOURCE MATERIAL SERIES No.79

A. Work
A day of imprisonment is equal to two days of Work. They are not computed at more than eight hours daily.
B. Study
A day of imprisonment is equal to two days of study. A day of study is equivalent to six hours weekly.
This area is very important and it is applied widely. An Office has been established with the rank ofDirection that exclusively promotes, controls and informs judges of the dispositions above-mentioned. The
relevant article from the Law Nº 17,897 of 14 September 2005 is outlined below and establishes:“Article 13 (Redemption of Punishment by work or study). – The Judge will grant the redemptionof punishment by work to the inmate without freedom. To the accused and the condemned a day of
imprisonment by two days of work will be exchanged to them. For these effects they will not be possible tobe computed more than eight hours daily of work.
The prison authority will determine the works that must be organized in each penitentiary center, thosethat along with the works carried out during the transitory exits authorized by the competent Judge, will be
unique the valid ones to redeem punishment.
Also the prison authority will promote the creation of sources of work, industrialists, farming or
handicrafts skills according to the budgetary circumstances and possibilities.
For the effects of the evaluation of the work in each center of imprisonment there will be a Advised
Council constituted by personnel designated by the prison authority. The Judge will grant the Redemption ofpunishment by study to the condemned with jail.
To the indicted and the condemned a day of imprisonment by two days of study will be paid to them.
It will be computed as a day of study the dedication to this activity during six hours weekly, thus is indifferent days. For those effects, they will not be possible to be computed more than six hours daily of study.”“Article 14 (Labor Insertion of released people). - It would include in all bids on public works andpublic services. Is mandatory for the contracting industrialists, to register in the work lists a minimum
equivalent to 5% (five percent) of the affected personnel to tasks of laborers or similar, to released people
who are registered stock-market of Jailed and Released Work of the National Patronage. Also, the Executive
authority will be able to establish a system of advantages for those companies that register released
registered in stock-market of Work referred, over 5% (five percent) stipulated. The Executive authority,
through National Patronage of Jailed and Released, will promote agreements with the Departmental
Governments to establish similar regimes with respect to works and services departmental public.”
LABOR AND EDUCATIONAL ACTIVITY IN URUGUAY’S JAILSMARCH 2008

TOTAL

MEN

WOMEN

TOTAL INMATES
OF THE COUNTRY

6981

531

7512

WORKING STUDYING
1991

1230

WITHOUT WORKOR STUDYINGTEACHERS

4291

122

VII. CREATION OF THE PARLIAMENTARY COMMISSIONER(OMBUDSMAN)
With the battery of measures destined to improve the national prison system in 2003 the parliament
approved for the first time a law that instituted the figure of the denominated Parliamentary Commissioner
whose main function is to ensure that the human rights of inmates are respected, giving him ample powers
to exert that function while at the same time exclusively informing the Legislative Power of his activities

294

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

and the irregularities found.
I think it is better to illustrate the text of the Law:
“Article 1°. - The Parliamentary Commissioner’s main assignment is to advise the Legislative Power in
his function of the control of the fulfillment of constitutional, legal and prescribed the norm effective, and of
the international treaties ratified by the Republic, referred to the situation of the deprived people of freedom
by judicial process. Also the supervision of the activities of the organizations in charge of the administrationof the prison establishments and the social of inmate will be incumbent on to him or released reintegration.
Article 2°. - For the fulfillment of his functions, the Parliamentary Commissioner will have the following
attributions:(a) To promote the respect of the human rights of all the people submissive a judicial procedure thatderives its deprivation from freedom.
(b) To ask for information to the prison authorities in the matter to the conditions of life of the inmatesand, in particular, the adopted measures that can affect their rights.
(c) To formulate recommendations to the prison authorities so that they modify or they lapse measured
adopted or incorporate other that tend to the fulfillment of effective the constitutional and legal norms.
(d) To receive denunciations on violations of the rights of the inmates, in agreement with the procedurethat settles down. In such case, it will have to hear the authority explanation before formulating therecommendations that it considers advisable in order to correct the procedures and to restore thelimited rights.
(e) To make inspection of general character to the prison establishments, having to not less thanannounce its visit to the corresponding authority with twenty-four hours of anticipation. When his
control into the jails are for verify a concrete denunciation can do an inspection, to that only effect,
without previous warning.
(f) To prepare and to promote the studies and information that consider advisable for the best
performance of their functions.
(g) To request information to organisms public, offices, defense counsels, organizations of attendance
and other analogous ones, with aims of advising and promotion. All report regarding matter orcompetition of jurisdictional character is excluded from this attribution.
(h) To annually render a report to the General assembly, in which the management fulfilled express
mention of the recommendations and suggestions formulated to the administrative authorities will
be analysed. The report will be able to contain, also, recommendations of general character.
When the advises were urgent he will be able to offer an extraordinary report.
The information will not include personal data that allow the identification of the interested in theinvestigating procedure and will be published in the Official Newspaper.
(i) To interpose the resources of “habeas corpus” or asylum.
(j) To do the corresponding penal denunciation when it considers that crimes exist.
(k) To cooperate with the organisms or National and International Organizations who promote therespect of the human rights and attend and defend the rights of the indicted or condemned.
Article 3°. - The Parliamentary Commissioner will not be able to either annul the acts and resolutions of
the Administration, nor to impose penalties nor to grant indemnifications.

295

RESOURCE MATERIAL SERIES No.79

It will be able, nevertheless, to suggest the modification of the criteria used for the production of acts andresolutions.
Article 4°. - The recommendations formulated by the Parliamentary Commissioner will not haveobligatory character, but the administrative authority to which it goes will have, within the thirty daysof notified of them, to give answer in writing, particularly of the reasons that attend to him not to follow
them. If the Parliamentary Commissioner will not be satisfied to them or he does not receive acceptable
information, he will send backgrounds to the person in top charge of the institution.
If within the next sixty days he does not have a suitable explanation, it will include the subject in his
report to the General Assembly, with mention of the authorities or civil servants who have adopted such
attitude, the formulated recommendations and the reasons of the Administration, there will be if them.
Article 5°. - The administrative services in charge of the imprisonment establishments are forced to help
and to collaborate with the Parliamentary Commissioner in their investigations, inspection or orders of report.
Article 6°. - If in the fulfillment of his functions, the Parliamentary Commissioner reaches the conclusionthat a crime has been committed, will have to let know it to the chief corresponding for the purposes of thatit he adopt the pertinent measures, notwithstanding had in the literal (I) in article 2°.
Article 7°. - The activities that the Parliamentary Commissioner could make will have reserved characterand confidential, as much with respect to the individuals as of the agents, involved offices and organisms.
Article 8°. - All complaint directed to the Parliamentary Commissioner will appear in writing founded,signed by interested or its defender, with indication of the name and address of the signer, within the
counted term of six months as of the moment at which anyone of them had knowledge of the facts object ofthe denunciation. Of all complaint receipt with indication of the date of its presentation will be accused.
The proceeding will be free and it will not require learned attendance.
Article 9°. - It is prohibited the registry, examination, interception or censures of the correspondence,telegraphic or of any other species directed to the Parliamentary Commissioner, including that one sent fromany center.
They could not either be object of listening or interference the personals conversation, telephone, radialor any other type, between the Parliamentary Commissioner and the people, including those prisoners,
boarding schools or put under safekeeping.
Article 10°. - The Parliamentary Commissioner will have to take to a registry of all the complaints thatare formulated to him; those that will be able to transact or to reject. In this last case it will have to do it in
writing founded that will notify the interested one, on which will be able to indicate the normal routes orprocedures that this one has to its disposition.
The anonymous complaints will be rejected, those that denote bad faith, well-known lack of foundation ortrivial being this one or trivial one, having to found the rejection.
When the problem were is the same that is put under judicial decision or of the contentious office staff,
it will have to interrupt his action in the tactical mission, but it will not prevent that the investigation
continues with a view to solve the involved general problems in the procedure.
Article 11°. - The presentation of a complaint before the Parliamentary Commissioner is notwithstanding
the rights that can have the interested to resort by the administrative or judicial route, in agreement withthe regime of resources or actions anticipated by the law.
Article 12°. - Admitted the complaint it will be come to make an informal investigation, indicts andreserved, destined to clarify the facts.

296

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

In all the cases they will notify to the organism or involved administrative dependency will occur, throughits maximum authority, asking for a report to him in writing within fifteen days. This term can be prorogued
if therefore it will be asked for in founded writing and it is considered necessary.
Article 13°. - The refusal of the civil servants or its superiors to send the information that ask for or
the lack of collaboration in the attendance or aid to them asked for in form, could be considered obstructattitudes in the normal operation of the assignments of the Parliamentary Commissioner.
In this case the Parliamentary Commissioner will notify under warning the competent maximum authoritythat of not acceding itself to the petition within fifteen days will be able to raise the reserve of the activities.
Article 14°. - The civil servant who will prevent the investigation by means of the refusal to answer the
information or would not facilitate the access to files or necessary administrative documentation for theinvestigation, will incur in crime.
Article 15°. - The Parliamentary Commissioner will be designated by the General Assembly, in joint
meeting of both Cameras, requiring itself in agreement vote of the three fifth of his components and before
the same he will take possession from his position, having rendered oath to carry out to him properly.
Its grant will be determined by the General Assembly to the opportunity to designate to him.
Article 16°. - The duration of the mandate of the Parliamentary Commissioner will be of five years, being
able to be re elected by a single time.
Article 17°. - Its position will stop in the following circumstances:(a) By death.
(b) By resignation.
(c) By destitution by well-known negligence, serious irregularity in the performance of its functions
or loss of the demanded conditions of morale, being able to be stopped early in these cases by theGeneral Assembly with the same majorities required for its designation and in public session inwhich the imputed will be able to exert its defense.
Article 18°. - The Parliamentary Commissioner may choose any person with the following qualities:(a) Uruguayan citizen, natural or legal. In this last case he must have a minimum of ten years ofcitizenship.
(b) To have reached the age of thirty five years.
(c) To be a person with recognized specialization in human rights and specifically in the tie rights thepeople, civil servants and places where they lodge that are private of freedom.
Article 19°. - The General Assembly within the sixty days of promulgating the present law, will integratea Special Commission of nine members conformed by all the Political Parties to representation in that one,with the assignment to formulate the proposals of candidates, according to the following procedure:(a) Within the fifteen days following the constitution of the Commission, the members of the General
Assembly will be able to propose in founded form, candidates who adjust to the qualities described inarticle 18.
(b) Within the following thirty days, the Commission will be able to invite and to receive to particular
citizens or social organizations to listen to proposals or to successfully obtain opinions on thecandidates. These sessions and the received information strictly will be reserved.

297

RESOURCE MATERIAL SERIES No.79(c) In the term of the following thirty days, the Commission will come to elevate to decision of theGeneral Assembly the proposal of the candidate, resolution that in the Commission will have to be
adopted by 3/5 (three fifths) of its members.
Article 20°. - The Parliamentary Commissioner will not be subject to imperative mandate, nor will
receive instructions of any authority having had to perform his functions with total autonomy, according to
his criterion and under its responsibility.
Article 21°. - The activity of the Parliamentary Commissioner will not be interrupted by the inactivityof the Cameras, nor by its dissolution according to the mechanism anticipated in Section VIII of theConstitution of the Republic. In such cases, the relation of the Parliamentary Commissioner with theLegislative Power will be done through the Permanent Commission.
It will not either interrupt his activity in the cases of suspension of the individual security (article 31 of
the Constitution of the Republic) or of adoption of quick measures of security (number 17 of article 168 of
the same).
Article 22°. - The position of Parliamentary Commissioner is incompatible with another remunerated,public or deprived activity, except for the exercise of teaching.
Article 23°. - The Senate of the Republic, to request of the Parliamentary Commissioner, and in
consultation with the House of Representatives will designate, among the civil servants of the organisms ofLegislative, advisory and personal the Power necessary for the exercise of the functions that is entrusted tohim to the mentioned one.
In no case this personnel could be of more than ten civil servants.
Article 24°. - The advisers will stop automatically at the moment at which he assumes the new
Parliamentary Commissioner designated by the General Assembly.”

VIII. NATIONAL PATRONAGE OF JAILED AND RELEASEDThe National Patronage of Jailed and Released and the Departmental Patronages are in the fortification
process. The government impels a policy of reintegration for people who recover their freedom, and in suchsense the Patronage plays a fundamental role in the objective to reduce recidivism.
Created by decree in 1934, their attributions were set down thirty years later in Article 94 of Law
13,318 of 1964. Decree 417/985 regulates each article and establishes the integration of the Patronage, its
administrative organization and operation.
In 2005, the new government favoured the institutional fortification of the Patronage with definedmeasures. The objective was to reinforce its budget, ensure the incorporation of more suitable professionals,
and to celebrate new agreements with public institutions like the University of the Republic and City Hall ofMontevideo. In addition, Law 17,897, Humanization and Modernization of the Prison System, was approvedby the Parliament and allows commissions of government officials with suitable profiles to execute the task.
At present, they are orchestrating details with the Ministry of Social Development and with theMunicipality for the entrance of 75 inmates released to the group of “Work by Uruguay”, to fulfill tasks of
cutting tree roots and preparing sidewalks in the capital city.
The attention of the Patronage to the released, deprived of freedom and their relationships with theirfamilies is fundamental for the rehabilitation and inclusion of those who at some time committed a crime.
The mechanisms of social reintegration are for the present administration the key to reducing the rates ofviolence and criminality.
The Patronage mainly offers social, legal and psychological attention to the people released or soon-to-bereleased inmates or their families, who so request it.

298

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

Released by the Law of Humanization and the Modernization of the Prison System, they are required to
go to the Patronage, and to fulfill an individualized plan of reintegration established in agreement with its
referring technicians, according to the capacities or limitations of each released inmate.
In its different areas, the Patronage offers the following attention to attendees.

A. Health• Free management of the identity card;• Free management of the membership card of attendance for the services of health publications;• Co-ordination with centres specialized in cases of drug addiction, alcoholism, AIDS, the handicapped,birth control, etc;
• Free medicine delivery when these are not available in the pharmacies of the different State healthcentres;• Psychological attendance and derivation to specialized centers;• Feeding;• Delivery of membership cards for the National Institute for Feeding the Population and in special
cases, supplies of emergency aid.
B. Houses• Loans on extremely advantageous grounds for improvement and/or construction of houses (in thecases involving minors and the attendee is a proprietor of land or is properly authorized by themunicipality to build a property in a municipal estate or that of a relative).
• Co-ordination with the Ministry of Homes and the Bank of Materials of the Municipality.
C. Education• Co-ordination with the different educative centres, schools, grammar schools, day-care centres, etc;
• Support for the schooling ofe minors by means of the subsidized sale of uniforms, sports footwear,
equipment, and the donation of scholastic equipment against the presentation of a certainty of
inscription at the beginning of the scholastic year;• Support and stimulus for reintegration in centres of formal education of the young deserters of thesame, and support with equipment, footwear, tickets, etc.
D. Work
The labour market takes a registry of attendees that ask for work, and receives requests for personnel on
the part of companies.
Weekly, personnel evaluate the candidates and offer help through media ads:•••

Loans for the acquisition of tools of work and/or articles for the sale;
Presentation before companies that ask for personnel through the press;
Agreements with public organizations for those who lack work sources and psychological support forthese people.

E. Training
To increase the possibilities of its use, the Patronage has signed agreements with the Ministry of
Education and Culture (CECAP) and the Ministry of Work for the labour training qualification of attendees.
It also has a factory of educative-labour leading to qualifications for the search and obtaining of work.
For the ladies shelter and the sewing factory, informative factories on themes of interest to the attendees
are organized (domestic violence, health, HIV/AIDS, etc.).

F. Alternative Punishment
Persons indicted or condemned by the Penal Magistrates with a Personal recognizance are often given
an alternative punishment with a measure of communitarian tasks. In order to make possible its fulfillment,
the National Patronage of Jailed and Released has signed agreements with the Ministry of Public Health anddiverse schools that offer work places. The subject persons receive psycho-social support throughout the299

RESOURCE MATERIAL SERIES No.79

process, support that can extended if they so request, after the fulfillments of the court-mandated treatment.
The statistical results of recidivism in the cases of people indicted without prison and with alternative
punishment are noticeably lower than that of persons released from imprisonment centres.

G. Shelters
Board and lodging is provided for released or secluded women with small children who may be vulnerable
to homelessness. Psycho-social support is also available, as is multidisciplinary equipment for the sport andrecreation of the children of inmates of women’s jails who request it.
H. Place for the Expression of Children
Smaller children of the female inmates of women’s prisons and shelters, who are experiencing difficulties
of a psychological nature, are taken care of by two psychologists.
I. Sewing Factory
Qualifications for women of more than 14 years, with the possibility of obtaining at the end of the course
a corresponding diploma.
Production of sheets, uniforms, sets and work clothes.

J. Economic Sale
Sale of beds, mattresses, sheets, blankets, clothes, footwear and clothes for babies; all subsidized
elements for which the attended pay a third of the cost.
IX. FUTURE MEASURES TO DIMINISH THE NUMBER OF PEOPLE IN PRISON
As we said at the outset we have seen meticulous laws, regulations, measures, institutions, etc., thatduring last the decade have been designed to improve the situation of jailed citizens, to facilitate their social
reintegration or to diminish their permanence in the jails, but even so the reality and the statistics show thatan exponential increase in the amount of incarcerated citizens is continuing. The government, along with
the involved organizations, including the National Bureau of Jails, is in the process of measuring efforts toachieve the above-mentioned. It is for that reason that at this moment, besides the importance that it has
acquired, the Redemption of Punishment explained above and the other enunciated measures including thefollowing procedures are being implemented.

A. Official of Probation
1. Background
In March 2006, an international nongovernmental organization, Companions of the Americas Uruguay
Minnesota, began a project named “Fortification of the System of Justice and Penitentiary System ofUruguay”, that was declared of interest by the Supreme Court of Justice and Ministry of Interior.
2. First Stage of the ProjectThis included a visit of a group of experts of the State of Minnesota, USA for ten days. They met withlegislators, members of the Supreme Court of Law, the Association of Magistrates, the Parliamentary
Commissioner, the Minister of the Interior, and developed activities of qualification and gave advice
regarding the penitentiary system and the justice system.
3. The Second Phase
This allowed the visit of four officials of the penitentiary system of Uruguay to the State of Minnesota,
with aims of information interchange and qualification in the general operation of the justice system and thepenitentiary system, with special emphasis in the Institute of Probation.
4. The Third Phase
One US expert in the systems of probation and the judiciary visited, concentrating on activities in the
diffusion, information and qualification of the systems of probation at all levels. An event of national reach
was developed which was attended by more than 120 people involved in the subject.

300

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

5. The Fourth Phase
It determined a new visit to the State of Minnesota for a Judge Penal and an official of the penitentiary
system, with the purpose of acquiring a deep knowledge in the system of probation, “a pilot experience inprobation in Uruguay”, since we already counted on the offer of three Penal Courts for its development in thecity of Montevideo and the modification of the present legal system not being necessary for its implementation.
6. The Fifth Phase
The fifth stage will:•••

Define the institutional insertion of the Office of Probation;
Define the profile, to select and to enable personnel for the Supervision of Probation;
Choose the courts that will develop the pilot experience.

Because of this and with the intention to continue searching for solutions that allow us to diminish thenumber of persons incarcerated, the alternative of supervision in freedom sets out that it controls, it orients,
and it guards by the fulfillment of parallel alternative punishment, at the same time as it promotes thecommunitarian participation of social reintegration.
It is of order to emphasize the importance of advancing in the instrumentation of projects which are
generated at present and that try alternative measures to imprisonment which offer a solution for theovercrowding situation in our penitentiary system and we know that this institution is good penitentiary
practice in other countries.

B. Electronic Bracelets
1. “System of Electronic Monitoring” Institutional Advantages
The incorporation of technology is a clear advantage of the proposed system:•••

It is an innovating product for the prison regime;
It would contribute reducing overcrowding of our jails;
It would allow us to try other modalities at different stages of penitentiary treatment, for example,
extra-mural work.

2. Advantages for the Inmate
It is another motivating alternative with short term rehabilitation goals, which help to avoid the decline
in motivation which occurs over longer periods.
3. Advantages for the Penitentiary Security
It harmonizes with the principle of progressiveness, so that security in this case is a dynamic and flexible
concept.
It allows the authorities to rationalize human resources.
It is a fast control response, before the possible transgression of the offender.
It is easy to use, and operators of the equipment have prior qualifications.
In the case of transitory exits, domiciliary and/or labour, it would be easy to control, which at present it isnot, because of personnel and logistical deficiencies.
4. Disadvantages• The operational range is not clear;• There are no legal norms that rule their use;
• It would be necessary to clearly determine the cost of the equipment;• Detailed technical information on the operation of the equipment is lacking;• Further information on the system is required;• It would be useful to know data on his application and results in compared systems;• Lack information with respect to service or maintenance of the equipment.

301

RESOURCE MATERIAL SERIES No.79

5. Conclusions• It is necessary to establish the relative cost-benefit, integrating the cost that an inmate generates indetention;• It would enhance the development of the rehabilitation policy;• Its implementation harmonizes with the principle of progressiveness;• It is considered highly beneficial to fulfill labour and educative application programmes;• It contributes to diminish the tensions of prison life;• Within the framework of the Progressive Regime of Imprisonment, it would be useful to co-ordinate an
offender’s application for another alternative, to shorten terms of the granting of the anticipated freedom;• It could be useful in the application of the Parole and anticipated freedom.

(i) Recommendation
To orchestrate a Pilot Plan, which allows additions to the innovations in execution, a new alternative, which
contributes to reinforce the principle of self responsibility, contemplated in Article 60 of Penitentiary Law Nº14,470/75; the Book of Good Penitentiary Practice, published by Penitentiary Reform International (Section K,
Literal 3, Page 101); the Minimum Rules for the Treatment of the Inmates (Rule 61, and that is complemented
by the Minimum Rules of the United Nations on non-incarceration measures (Tokyo Rules. No. 2).
(ii) Other Advantages• It is an innovating product for the Prison Regime;• It would contribute to reducing overcrowding of jails;• It would allow other modalities at different stages of penitentiary treatment, like for example extramural labour;• It would allow better rationalization of the human and material resources;• It allows fast responses, before the possible transgression of the covered area, mainly for thosereleased on Transitory Exits, since today it is not counted on any type of control or affected byserious deficiency of resources;• It is of easy handling, and the operators have previous qualifications;• It contributes to diminishing the tensions of prison life;• It allows to the offender the possibility of maintaining relationships and to possibly work, influencing
directly his or her recovery and the indices of recidivism of the crime;• It avoids the contagion produced when jailing minor violators of the Penal Law in the same
institution as dangerous delinquents or those jailed for serious crimes;• It could be integrated into the punitive system as an alternative to prison;• In similar experiences in other countries (the United States, New Zealand, Australia, Spain, Italy,
and Argentina - this one last one in the test stage), the rate of recidivism of offenders subject toelectronic monitoring or house arrest as a percentage has been lower than those released under the
traditional system.
(iii) Recommendations
Uruguay should increase the use of the measure, especially since the legal framework for its
implementation is already in place. We understand that would be a great advance from the penological view
to include this type of substitute measure as one more form of social control and not to continue relying on
incarceration. The alternatives can be used to fight the complex and many-sided problem of crime, especiallywhen our penitentiary system is facing a humanitarian emergency.

X. HISTORY OF THE NATIONAL BUREAU OF JAILS, PENITENTIARIES ANDREHABILITATION CENTERS
The Council of Patronage of Delinquents and Minors was created by laws of 4 April 1891 and 8 April
1915.
The Main Directorate of Penal Institutes was created on 19 October 1933, and was sanctioned in thestatutory law of 16 November 1933, the Ministry of Instruction (today Education and Culture), having
jurisdiction.
Through the Decree of the Executive Authority Nº 27/971 of 20 January 1971, the Ministry of the302THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

Interior took jurisdiction and the name of the council became the National Bureau of Penal Institutes,
acquiring its present denomination in the mid 1980s.

FLOWCHARTMINISTRY OF INTERIORNATIONAL BUREAU OF JAILS, PENITENTIARIESAND REHABILITATION CENTERS

NATIONAL DIRECTORASSISTANT DIRECTOR

EXCECUTIVE COORDINATORPENITENTIARIESJAILSREHABILITATIONCENTERSINTERNAL AFFAIRS

XI. PENITENTIARY LAW Nº 14,470
The Penitentiary Law Nº 14,470/70 consecrates a progressive regime. The progressive system has themain idea of a dynamic interaction between the treatment and the answer, which allows that the inmate is
not an object submissive to invariable rules, but a human being who with his or her conduct is conquering
new forms of life within the prison.
The start point of the system begins with the criminological opinion (diagnosis and prognosis) of aninterdisciplinary team of technicians who consider the personality, age, crime committed, work situation,etc., and consequently pronounce on the danger of the inmate and his or her presumed degree ofadaptability, classifying it and assigning him or her to a penitentiary for treatment and a location within thecomponents of the prison complex.

A. Classification
1. Penological Criteria
1) Adults of 18 to 25 years;
2) Adults of more than 25 years;3) Special, that is, defined as non-adapted to any type of collective programme.
2. Legal Criteria
1. Primary Penological and
2. Relapsing.
We consider a “primary legal” a person who has had contact with justice and minors with file in thiscategory are considered “relapsed”. They are subdivided into303

RESOURCE MATERIAL SERIES No.79

(i)
(ii)

Indicted; andCondemned.

3. Criterion Type of Offence
1. Property;
2. People;
3. Economic;
4. Others, etc.
4. Special Criteria
1. Homosexuals;
2. Diverse professionals;
3. Members of the Army and Police;
4. Others.
Penitentiary treatment can begin in a unit of medium security, or of minimum security if criminologicalopinion so advises. The Pavilion of Admission is important in this regard.
The technicians who conduct the biosocial study will continue supervising the execution of the treatment,
including the personnel of the Complex in charge of the work, education and security of the inmate.
The information will allow the evaluation of the treatment and the change of the same in a positive or
negative sense. To such aims, a meeting of treatment in each Unit would work.

304

THE 141ST INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

APPENDIX A
STATISTICS
PRISON POPULATION PER 100000 INHABITANTS
Inmates and Population of the Country divided for States in Uruguay.
Date: 31 July 2008

STATESINHABITANTSINMATESARTIGASCANELONESCERRO LARGOCOLONIA
DURAZNOFLORESFLORIDALAVALLEJAMALDONADOMONTEVIDEOPAYSANDÚRIO NEGRORIVERAROCHASALTO
SAN JOSÉSORIANOTACUAREMBÓ
TREINTA Y TRES
TOTAL

79297
51461689871
120842
61321
25648
70235
61910
149071134027311585455934
11018070515
127345108649
87508
95313
49670
3334052

119
956
108
102
92
37
87
123
409
4593
149
91
249
92
165
99
128
120
61
7780

RATE x 100000
INH.
150,07
185,77
120,1784,41
150,03
144,26
123,87
198,68274,37
342,69128,61
162,69225,99130,47
129,5791,12146,27125,90122,81
233,35

The jails in Uruguay, like those of almost all the Latin American countries, are over-crowded. In Uruguay
the incarcerated population (about 7,780 prisoners approximately) represents 0.2% of the total population of
the country. This implies a rate of 233 imprisoned people per 100,000 inhabitants, similar to Chile.

305

REPORTS OF THE SEMINARGROUP 1
THE 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 a
defendant 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.

306

THE 141ST INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

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 the
grounds 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 to
produce 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 was
specifically 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 the
pre-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 in
the 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.

307

RESOURCE MATERIAL SERIES No.79

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 in
2000, 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 of
the 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 an
agreement. 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 suspended
sentences. 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.

308

THE 141ST INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

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 be
pursued.

309

RESOURCE MATERIAL SERIES No.79

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 only
for juveniles and
women

×

Indonesia○○○

Before and after
trial Police andProsecutor
discretion

Pakistan○×

Fine and sentence

○

×

×

×

○

After sometime
spent in jail○○In effect andsupervised by
Elders of villages
and issued by village
courtsSri Lanka○

President cansuspend a death
sentence 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:
×

○

310

Not applicable to that country
Applicable to that country

THE 141ST INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

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 close
cases, 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. For
cases 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 any
arrest 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 final
decision.

√

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

311

GROUP 2
EFFECTIVE MEASURES TO IMPROVE THE TREATMENT OF OFFENDERSTHROUGH THE ENHANCEMENT OF COMMUNITY-BASED ALTERNATIVESTO INCARCERATION AT THE POST SENTENCING STAGE
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Ms. Boitumelo Makunga
Mr. Akihiro Nosaka
Ms. Janet Davey
Mr. Yasuhiro Date
Mr. Antonio Carlos Welter
Mr. Sutrisno
Mr. Jihad H. Majali
Mr. Victor Manuel Esteche Mendez
Mr. Carlos Vargas Merida
Mr. Leo Sarte Carrillo
Mr. Jose Enrique Colman
Mr. Manabu Nakajima
Mr. Shigeru Takenaka
Prof. Naoyuki HaradaProf. Jun Oshino
Prof. Tetsuya SuganoProf. Koji Yamada(Botswana)(Japan)(Jamaica)(Japan)(Brazil)(Indonesia)(Jordan)(Paraguay)(Peru)(Philippines)(Uruguay)(Japan)(Japan)(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
The group convened on 26 January 2009 and concluded discussions on 3 February 2009. The group
was chaired by Ms. Makunga, with Mr. Nosaka as the co-chairperson, Ms. Davey as the rapporteur andMr. Date as the co-rapporteur. The group consisted of 13 participants from ten countries; who had diverse
professional experience ranging from legal expertise to policing as well as probation work to working withconvicted inmates. The group was assisted by four UNAFEI professors.
The members of Group 2 were required to examine: “Effective measures to improve the treatment ofoffenders through the enhancement of community-based alternatives to incarceration at the post sentence stage.”Sub- topics included:a)

The mechanism of community-based alternative measures to incarceration undertaken by each country;b)Current situations and problems facing existing legal systems and/or practice of the above
mentioned mechanisms;c)

Countermeasures under current legal systems and/or practice of the above mentioned mechanisms;d)

Identification of other effective intervention models;e)

Measures to monitor and evaluate all mechanisms discussed.

II. SUMMARY OF THE DISCUSSIONS
A. Mechanism of Community-Based Alternatives to Incarceration in Each Country
The group first reviewed the current systems of community-based alternatives to incarceration
employed in each participant’s country. These are listed in Table 1 below. There were slight variations in
the administration of some of the alternatives, the general agreement was: even if the term is the same;
there is a difference in the use for each country. With this in mind there were differences in some of the noncustodial options - included in the differences were: parole, probation and suspension of execution.

312

Corporal
Punishment

Presidential
PardonCombination
OrdersAdmonished andDischarged

Electronicmonitoring(currently piloting)Redemption/(for person who
study or work inprison)Reprieve

Bound over tokeep the peace

Amnesty
Pardon

Domiciliary
ArrestRightsRestricted

Halfway house

Domiciliary
ArrestRemission

Dismissal
with warning

Conditional release

Suspended
Sentences

Suspensionof Execution

Suspended
Sentence

Fines
Community
Services Order

Fines

Suspended
Sentence
Supervision Order

Probation

ParoleJamaica

Extramurallabour

Fines

Fines

Probation

ParoleParoleProbation

Indonesia

BrazilProbation

Botswana

Amnesty
PardonHalfway
house

Suspensionof Execution

Fines

Probation

ParoleJapan

Amnesty
PardonSuspended
SentencesFines

JordanPardonHouse
Sentences for people overseventy andpregnant womenCommunity
work

Charity HelpParoleParaguay

Amnesty
Pardon

Domiciliary
ArrestRemissionCommunity
LabourProbation

ParolePeru

Goodconduct timeallowance

Amnesty
PardonHalfwayhouse

Commutationof SentenceCommunity
Service

Fines

Probation

ParolePhilippines

Redemption for
prisoners who
work or study inor out of prison.

Family leave

Extra wall leave

Patronage

Indictment
without prison

Amnesty

Halfway house

Domiciliary
ArrestReducedSentences

Community
LabourFines

ParoleUruguay

TABLE 1: A SUMMARY OF NON-CUSTODIAL ALTERNATIVE MEASURES TO INCARCERATION UNDERTAKEN BY EACH COUNTRY

THE 141ST INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

These variations are outlined below.

313

RESOURCE MATERIAL SERIES No.79

B. Current Situations and Problems
Participants deliberated on the major problems impacting on the administration of the various alternatives
to incarceration processes. The main problems were lack of financial resources to maintain community-based
programmes as well as lack of adequate human resources to monitor and guide offenders. Also stated werenumerous problems which were unique to each system in each country. These were itemized as follows:1.

Lack of community understanding and societal support: communities deem offenders to be
dangerous and do not appreciate them being released into their environment; believing that this typeof practice can endanger the populace as a whole;2.

Lack of collaboration between agencies: results in the fragmentation or duplication of services byagencies that work with offenders in the community; causing the agencies services to be overstretched. Furthermore, this in turn could result in lack of support systems for some candidates;

3.

Slow legal procedures: this was believed to be related to the lack of adequate risk assessment
procedures. For example, what criterion was to be used to select offenders suitable for parole?

4.

A highly centralized processing system: the end result of a centralized system is a backlog of cases
resulting in the impediment of carrying out the prescribed sentence;5.

Too many high-risk offenders: making the option of community-based alternatives to incarceration
risky for the community;

6.

Inadequate monitoring due to lack of human resources.

The problems outlined by participants from countries using parole as an alternative to incarceration
are as stated above. However, some of the participants listed a short parole period (resulting in a highrecidivism rates) and a highly centralized processing system (resulting in a backlog of cases and the ensuing
impediment of carrying out the prescribed sentence) as major problems.
Of the ten legal systems, six had probation as an alternative to incarceration. In the case of Jamaica this isa separate order and not pinned to any other order as is evident in the systems that have it pinned to paroleor suspension of execution. The major problems affecting probation are similar to the ones stated above.
Regarding the alternative of monetary penalties/economic sanctions, most of the participants stated that
there are no major problems with this option; however, the participant from Botswana stated that offenders
may have a tendency to believe they can buy the criminal justice system because they have the means to do
so. Another participant indicated by that the major problem with the administration of this option was the nonpayment of fines. The participant from Indonesia pointed out that fines are only granted for special cases i.e.
traffic accident offences and limited corruption cases.
Most of the participating countries utilized some form of suspended sentence. Concerning the option ofsuspended sentence without supervision, participants indicated that the major problems encountered with theadministration of this alternative are a high recidivism rate and lack of recognizance on the part of the offender.
On the subject of a suspended sentence with supervision order, most participants indicated that the major
problems encountered in the administration of this alternative are similar to the former. In addition, theparticipant from Jamaica pointed out that lack of human and financial resources hampered the implementationof programmes and projects for offenders who are subjects of this option.
Participants from Indonesia, Japan, Jordan, Uruguay, Peru, and the Philippines stated that amnesty wasused in their countries as an alternative to incarceration. However, they pointed out that the problems withthis option include increased recidivism rates due to poor evaluation of recipients, limited use of the option
by the judiciary and the lack of clear procedures in some jurisdictions.
One legal system is piloting electronic monitoring and this will be used as a measure to enhance otheroptions. Problems include a high cost, a lack of clear legislation and lack public sensitization.

314

THE 141ST INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

Community Service Orders, Combination Orders, Charity, and Extramural Labour all punish offenders in
the community. These forms of alternatives to incarceration were defined in a similar manner - unpaid public
work or service conducted outside the prison. However, participants agreed that the major problem with thisoption is a high risk factor for penal institutions, where offenders could/would bring in contraband into theprison, as well as a high recidivism rate.
Brazil was the only country which has Rights Restricted as an alternative to incarceration and the
problems encountered in relation to that option are similar to the problems mentioned in the introduction ofthis section above.
Brazil, Uruguay and Paraguay are the only represented countries which have house sentence/domiciliaryarrest as an alternative to incarceration. This option requires an offender to remain in his/her own abodewith certain restrictions. The problem encountered in relation to this option is a lack of human resources.
Similarly Uruguay’s patronage for released people and extra-mural leave had problems with lack of financial
resources and carried a risk factor of the importation of contraband for penal institutions. Extra-mural leavealso encountered the same problems in Brazil. Family visits existed as an alternative in some countries andthe problems cited were similar in nature to those encountered in the use of patronage for released people
and extra-mural leave as alternatives to incarceration.
Reduced Sentences/remission were outlined as alternatives to incarceration in some countries andthe major problems with were cited as a lack of comprehensible legislation: inadequacies in the selection
process of suitable offenders, a lack of adequate human resource and slow legal processes.
Corporal punishment was used as an alternative in one jurisdiction. One of the participants stated that it
was an inhumane and degrading punishment; another stated that it was a violation of human rights; however,corporal punishment should be viewed in its cultural context.
Verbal sanctions i.e. admonition and discharge or dismissal with warning are used in Jamaica and
Botswana respectively. The main disadvantage of these options were identified as a lack of human resources.
Redemption is used in Brazil and Uruguay as an alternative to incarceration and as a measure of
rehabilitation and social reintegration. However the major problem is inadequate support services i.e. lack of
employment opportunities and educational facilities.

315

RESOURCE MATERIAL SERIES No.79

C. Countermeasures and/or Practice of the Above Mentioned Mechanisms
The participants went on to deliberate upon the problems that were encountered by, and possible
solutions for, the relevant agencies responsible for offenders.
Table 2-A. Collaboration among related agencies- e.g. Parole, Probation, Suspension of Execution

PROBLEMSSOLUTIONS• Lack of financial resources• Inadequacies regarding information sharing• Lack of capacity building• Lack of human resources• Lack of support systems for victims of crime• Fragmentation of the availability of services;e.g. health services for drug users andoffenders with mental illness• Limited employment opportunities• Police confidentiality of criminal records
tends to be lax• Enhancement of NGOs & CBOs by:- Information Sharing- Capacity Building- Sensitization• Secondment of officers to other related agencies• Sensitization and regular consultation meetings among
related agencies• Creation of a multi-sectoral board to assist in the searchfor solutions• Victim compensation and assistance programmes• Offender education regarding recognizance and restitution• Skills-development for parolees and probationers• Keep criminal records valid for a set period of time
• Enhancement of the PPP (Public-Private Partnerships)• Tax incentives for companies/agencies that employ
ex-offenders• Change of legislation to prevent access of passed criminal
records that will disadvantage the parolee or probationers
regarding their reintegration into society• Developing a policy of anonymity for certain categories
of parolees and probationers; i.e. keeping their IDs
anonymous in order to enable them to reintegrate into
society with minimal stigma and discrimination, but thisshould not be afforded to sex offenders and those whohave committed violent crimes

Table 2-B. Improvement of Staff Skills

PROBLEMSSOLUTIONS• Lack of capacity building• Lack of financial resources• Lack of screening of potential personnel• Poor motivation and incentive work packages• Closed/guarded incarceration systems• L ack of periodic evaluation of prison
personnel• Lack of specialized training• Holistic training done by qualified persons and experts• Work in collaboration with skilled professionals fromother sectors in order to gain much needed knowledge
and skills• Regular refresher courses especially for senior personnel
in order to keep them informed of current trends• Work–study programmes to further staff development• Development of efficient VPO systems• Encouraging school-leavers and university graduates
to take up employment in the sectors that work withoffenders• Develop in-country/national networks whose sole focus
would be developing community-based alternatives toincarceration• Develop biannual international collaboration forums.
• Develop skills banks nationally and internationally to
exchange best practices• Develop efficient selection procedures for personnel• Develop attractive career development processes

316THE 141ST INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

Table 2-C. Improvement of Treatment Programmes offered while the Offender serves his/her Sentence(in an institution and/or the community, etc.)

PROBLEMSSOLUTIONS• Problems with prison officer/offender ratio• Lack of financial resources• Lack of Capacity Building• Lack of human resources to monitor andassist offenders• Lack of support systems; i.e. drug rehab;sex offender rehab and health care for theoffenders• L ack of facilities; i.e. with regard to
employment and education opportunities forthe offenders• “Proper” sentencing of offenders e.g. somedrug traffickers are given probation which is
not practical• HIV/AIDS and related problems as a critical
health problem• Lack of sustainability of VPO programme• Lack of committed staff• Poor training of prison officers• Increased aged & disabled prison populations• Provision of funding for prison systems and prison
programmes• Capacity building of prison personnel• Robust community programme to help communities
understand community-based alternatives toincarceration• Post-release control of offenders• Improve infrastructure to afford employment andeducation opportunities for offenders• Availability of for mal educational facilities andvocational training opportunities within prisons thatafford inmates qualifications to use in the community• Have newly qualified professionals in psychology,sociology, criminology, medicine etc offer a year’s service
on completion of programme (mandatory national service)• Decentralization of mental healthcare for those in needof relevant care
• Affordable; accessible healthcare for offenders• Collaboration with health sector and drug rehab sector
to conduct drug-testing• Intensive HIV/AIDS prevention and treatment
programmes; including TB treatment in order toprevent or reduce the possibility MDR TB or XDR TB• Sex offender-treatment that is evidence-based• Small group therapeutic communities where offenders
support each other: this is cost effective• Therapeutic community modality with a restorative
justice as a conceptual framework and utilization ofvolunteers as a strategy• Creation of field training labs to enhance recruitment of
VPOs• NGOs train offenders in various skills• Supervision and support of NGOs that work withoffenders• NGOs that assist offenders families until children are 18• Collaboration with private sector; including private
sector administration of prisons• Collaboration of universities’ health faculties (or relevant
institutions) with agencies that assist offenders• Review of treatment programmes in order to makethem all evidence-based• Employment of professional experts from outside theoffender rehabilitation sector• Establishment of national prison hospitals to care forinmates with health problems• Provide psychological treatment for all inmates/offenders

317

RESOURCE MATERIAL SERIES No.79

D. Identification of Other Effective Intervention Models
The group participants went on to identify a number of practical intervention models, as follows:•

The relevant ministries should work in collaboration to provide additional community support
services and halfway houses that meet the needs of aged and disabled offenders;•

Domiciliary (house) arrest should only be considered for aged, chronically ill and disabled people;•

Establishment of a workable probation officer/offender ratio;•

Establishment of an effective risk assessment system to determine suitable candidates for housearrest and other community-based alternatives to incarceration;•

Electronic monitoring;•

Identify and adopt specific and effective drug treatment programmes for offenders with drug abuseproblems; e.g. the Therapeutic Community Model;•

Establishment of comprehensive community crime prevention forums.

E. Measures to Monitor and Evaluate all Mechanisms Discussed
The importance of monitoring and evaluation were considered; and critical areas were highlighted asfollows:•

Monitor recidivism rates in order to evaluate the success of the prescribed programmes;•

Monitor effectiveness of treatment models used to rehabilitate offenders;•

Employ qualified staff to monitor effectively;•

Establish an effective offender management system;•

Develop short-term and long-term monitoring systems;•

Monitor the mortality and morbidity of offenders to evaluate the level of healthcare provided for them;•

Establish a national crime statistics register that includes community crime statistics;•

Conduct a cost/benefit analysis of treatment programmes;•

Develop risk assessment tools to assist with analyses;•

Involve offenders in the choice of alternative sentencing;•

Establish neighbourhood commissions/committees that can help with the monitoring of offenders;•Establish effective VPO systems;•

Conduct public surveys to establish public opinion of alternative sentencing methods and involve thepublic in the planning of releasing offenders into their respective communities;•

Establish international networks that focus on monitoring and evaluation of alternatives to incarceration.

III. RECOMMENDATIONS AND CONCLUSION
Using incarceration as the only method of punishment will only lead to high recidivism rates, andfurthermore it will be a violation of human rights. Although we need to reduce the number of inmates in our
prisons, the most important of our goals should be the rehabilitation of inmates. Therefore, to be effective

318

THE 141ST INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

and to improve the treatment of offenders, the alternatives to incarceration that we propose should:
1.
2.
3.

reduce stigmatization;
promote the social reintegration of offenders;prevent recidivism.

In order to succeed in this objective we believe that by matching the right offenders with the rightsentencing options and ensuring that community-based programmes are adequately resourced andadministered with integrity, community-based alternatives to incarceration can become a reality for
productive and prosperous societies that aspire to reduced rates of crime.
The following are the recommendations proposed by the group members:
1.

Non-custodial options be considered as effective rehabilitation strategy;

2.

Sentencing officers who utilize alternative sentencing options should be cognizant of the humanrights of offenders;3.

Recidivism rates be continuously monitored;

4.

Risk assessments be used as an efficient supervision/monitoring system for community-based noncustodial options;5.

Inmates be evaluated during incarceration and as follow-up post release;

6.

Effective measures for evaluation of social measures be established;

7.

Effective public education programmes be implemented in order to sensitize and inform the public
about community-based alternatives to incarceration;

8.

Human and financial resources be increased to enhance the administration of community-basedalternatives to incarceration;

9.

Continuous research in these areas through public education forums, conferences, seminars andnetworking, at national, regional and international levels.

Finally, as societies we must understand that inmates are human beings who belong to our respective
societies and communities. We have discussed many community-based alternatives to incarceration and wehave arrived at the conclusion that the only way to reinstate offenders into society and into communities isby developing rehabilitation programmes in order to avoid recidivism - especially in this era where violenceis emerging due to deterioration in moral values, the current economic recession, influence on culturalvalues and other related factors.

GLOSSARY
*
*
*
*
*
*
*
*
*

AIDS –Acquired Immuno-deficiency Syndrome
CBO – Community Based Organizations
HIV – Human Immune Virus
M & E – Monitoring and Evaluation
MDR – TB - Multi-drug resistant tuberculosis
NGO – Non-governmental Organization
TB – Tuberculosis
VPO – Volunteer Probation Officers
XDR – TB – Extreme multi-drug resistant tuberculosis

319

APPENDIXCOMMEMORATIVE PHOTOGRAPHS• 140th International Training Course• Eleventh International Training Course on the Criminal Justice
Response to Corruption• 141st International Senior Seminar on the Improvement of theTreatment of Offenders through the Enhancement ofCommunity-Based Alternatives to Incarceration

UNAFEIThe 140 th International Training Course

Left to Right:
Above:
Mr. Jung, Prof. Higuchi, Prof. Yamada, Prof. Sugano
4th Row:
Ms. Ono (Staff), Mr. Iwakami (Staff), Mr. Matsumoto (Chef), Mr. Takagi (Staff), Mr. Kosaka (Staff),
Mr. Shirakawa (Staff), Mr. Koiwa (Staff), Ms. Uenishi (Staff), Ms. Ota (Staff), Ms. Usuki (Staff)
3rd Row:
Mr. Kitada (Staff), Mr. Kojitani (Staff), Ms. Tomita (Staff), Mr. Sakamoto (Japan), Mr. Matsunaga(Japan), Mr. Omura (Japan), Mr. Naploeon (Indonesia), Mr. Ito (Japan), Ms. Ono (JICA)
2nd Row:
Mr. Suiama (Brazil), Ms. Lam (Hong Kong), Mr. Mirza (Bangladesh), Mr. Suzuki (Japan),
Mr. Prommajul (Thailand), Mr. Sosa (Philippines), Mr. Malagoda (Sri Lanka), Mr. Saleh (Jordan),
Mr. Ahsan (Pakistan), Mr. Carvalho (Brazil), Mr. Rodriguez (Mexico), Mr. Nlanda (Botswana)
1st Row:
Mr. Fujiwara (Staff), Mr. Fujii (Staff), Prof. Naito, Prof. Tatsuya, Deputy Director Seto, Dr. Gercke(Germany), Director Aizawa, Mr. Schwarz (USA), Prof. Oshino, Prof. Sugiyama, Prof. Otani,
Mr. Nakasuga (Staff), Ms. Lord (LA)The Eleventh International Training Course on the
Criminal Justice Response to Corruption

Left to Right:
Above:
Prof. Higuchi, Prof. Sugano
4th Row:
Mr. Kosaka (Staff), Ms. Ono (Staff), Ms. Tomita (Staff), Mr. Matsumoto (Chef), Mr. Takagi (Staff),
Mr. Iwakami (Staff), Mr. Nakayasu (Staff), Mr. Kojitani (Staff), Mr. Koiwa (Staff), Mr. Kitada (Staff),
Ms. Usuki (Staff), Ms. Ota (Staff), Mr. Shirakawa (Staff)
3rd Row:
Mr. Poudel (Nepal), Mr. Bhattarai (Nepal), Mr. Yamada (Japan), Mr. Sorayuth (Thailand),Mr. Mongkol (Thailand), Ms. Jayasinghe (Sri Lanka), Ms. Uthaiwan (Thailand), Ms. Martinez Lagarde(Mexico), Mr. Khittkhun (Thailand), Mr Tshering (Bhutan), Mr. Abeysuriya (Sri Lanka), Ms. Kita
(JICA), Ms. Uenishi (Staff)
2nd Row:
Ms. Tosaporn (Thailand), Mr. Seksan (Thailand), Mr. Ishiwatari (Japan), Mr Virote (Thailand),Mr. Al-Suhaiqi (Yemen), Mr. Obayashi (Japan), Mr. Vannak (Cambodia), Mr. Azeez (Iraq),
Mr. Yasunaga (Japan), Mr. Somido (Philippines), Mr. Sy (Philippines), Mr. Moustafa (Egypt),
Ms. Pervin (Bangladesh)
1st Row:
Mr. Fujiwara (Staff), Prof. Tatsuya, Prof. Yamada, Prof. Oshino, Deputy Director Seto, Mr. Kwok
(Hong Kong), Director Aizawa, Mr. Gallo (Italy), Prof. Otani, Prof. Sugiyama, Prof. Naito, Mr. Fujii(Staff), Ms. Lord (LA)The 141 st International Senior Seminar

Left to Right:
Above:
Mr. Herradura (Philippines), Mr. Reddy (Singapore), Prof. Higuchi
4th Row:
Mr. Kosaka (Staff), Mr. Shirakawa (Staff), Ms. Ono (Staff), Mr. Matsumoto (Chef), Mr. Iwakami(Staff), Mr. Nakayasu (Staff), Mr. Takagi (Staff), Mr. Kojitani (Staff), Mr. Kitada (Staff), Ms. Usuki(Staff), Ms. Ota (Staff),
3rd Row:
Ms. Tomita (Staff), Mr. Nosaka (Japan), Mr. Welter (Brazil), Mr. Joydeb (Bangladesh), Mr. Ichikawa(Japan), Mr. Jagath (Sri Lanka), Mr. Ali (Pakistan), Mr. Nakajima (Japan), Mr. Date (Japan),
Ms. Yamamoto (JICA), Ms. Uenishi (Staff)
2nd Row:
Mr. Takenaka (Japan), Mr. Ogata (Japan), Mr. Sutrisno (Indonesia), Ms. Clarke (Guyana),
Ms. Makunga (Botswana), Mr. Nakashima (Japan), Mr. Suzuki (Japan), Mr. Carrillo (Philippines),
Mr. Colman (Uruguay), Mr. Esteche (Paraguay), Mr. Vargas (Peru), Mr. Nguyen (Viet Nam),
Mr. Majali (Jordan), Ms. Davey (Jamaica), Ms. Renny (Indonesia), Ms. Reu (Papua New Guinea),
Mr. Higuchi (Japan)
1st Row:
Mr. Fujiwara (Staff), Mr. Fujii (Staff), Prof. Sugano, Prof. Sugiyama, Prof. Yamada,
Deputy Director Seto, Ms. Sariya (Thailand), Dr. Kittipong (Thailand), Director Aizawa, Ms. Glenn(U.K.), Prof. Oshino, Prof. Otani, Prof. Tatsuya, Prof. Harada, Mr. Nakasuga (Staff), Ms. Lord (LA)