Group 3
NON-CUSTODIAL MEASURES FOR VAWC OFFENDERS REHABILITATION
AND REOFFENDING PREVENTION
Rapporteur: Mr. Gammaddagoda Liyanage Priyantha (Sri Lanka)
Co-Rapporteur: Mr. Norulekhsan Abdul Rahim (Malaysia)
Chairperson
Co-Chairperson
Members

Advisors

Ms. Evelyn Caril Medina Villeda
Mr. SHIMATO Jun
Ms. Malika Kurbanova
Mr. KOICHIRO Shin
Ms. Bounmany Savonglienkham
Mr. Ukrit Sornprohm
Prof. HOSOKAWA Hidehito
Prof. WATANABE MachikoProf. WATANABE Hiroyuki(Panama)(Japan)(Tajikistan)(Japan)(Laos)(Thailand)(UNAFEI)(UNAFEI)(UNAFEI)I. INTRODUCTION
Although imprisonment may be necessary for certain offenders, it has not offered a successful panacea
for prevention of recidivism according to surveys conducted around the world. Therefore, the members ofGroup 3 agree that Non-Custodial Measures (Hereinafter referred to as NCM) provide a fruitful remedy forprevention of recidivism. Accordingly, having discussed the non-custodial measures available in respective
jurisdictions of the members and having referred to the international instruments of the Tokyo Rules (Hereinafter referred to as TR), Commentary to TR, the Manual on Human Rights for Judges, Prosecutors andLawyers and the Bangkok Rules, the paper of Group 3 shall focus on following aspects:
1.
2.
3.
4.

Identifying the appropriate NCM for VAWC Offenders
Current practices of NCM at various stages of the criminal justice system
Advantages and Challenges
Recommendations.

In terms of Rule 2.1 of TR, NCM means any decision made by a competent authority to submit a person
suspected of, accused of or sentenced for an offence to certain conditions and obligations that do not include
imprisonment; such decision can be made at any stage of the administration of criminal justice including
pretrial, trial and post-trial stages.
NCMs are designed to stimulate a general reduction in the use of real deprivation of liberty in the systemof criminal law measures with the help of the most suitable alternative sanctions. Community involvementin treatment of offenders is also critical and research shows that the effectiveness of rehabilitation outside
the prison and also reducing the recidivism among the prisoners.
In the process of application of any NCM, the decision maker is required to ensure a proper balancebetween the rights of individual offenders, the rights of victims, and the concern of society for public safety
and prevention of recidivism. Therefore, these measures are of considerable potential value for offenders, aswell as for the community. NCM are applicable to all kinds of offenders suspected or accused.
Accordingly, in application of non-custodial measures, the judicial authority is required to consider thefollowing factors:
1.
2.
3.
4.
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The nature of the offence
The personality and background of the offender
The purpose of the sentence
The rights of the victim173RD INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEThe offender is required to be evaluated at all respective levels by the decision maker in order to decide
what NCM should be applied to the offender. In the process of deciding the criteria that should be applied isthe level of risk of recidivism. It is noted that the NCM applicable to the offender is dependent on the risk
level of the offender. In deciding the risk level, the method that should be adopted by the decision maker isEvidence Based Practice (EBP). Evidence Based Practice means decision-making by the competent authority
based on the best evidence available. What factors based on the evidence that are available to the decision
maker are also noteworthy in this stage. Criminal records of the offender, opinions of the experts such as
psychologists and officers of the prison board are examples of evidence that can be considered in theevaluation of the risk level of the offender. These evidence-based factors should be capable to facilitate andsupport the decision maker to come to a decision of what NCM should be applied to the offender.

II. ISSUES AND CHALLENGES
A. Pre-Trial StageThe NCMs which are available to any jurisdiction basically at the prosecution stage is suspension ofprosecution. This measure can be cooperated with treatment such as cognitive behavioural therapy or
rehabilitation for the VAWC offenders. This measure can be considered as rehabilitation of the offender
within the community. However, it is not advisable to be used for grave offences such as sexual abuse andrape. Suspension of prosecution is used in Japan as NCM at the pre-trial stage. The prosecutor having
considered the gravity of the offence, character, age, environment, circumstances under which the offence
was committed, the prosecution is suspended indefinitely or for a specified period. A bail system thatminimizes the pretrial detention which should be taken as the last resort is a measure that can be taken at
the investigation stage. The offender’s personal needs and interests have to be weighed against society’sinterests at the pre-trial stage1 as well.
B. Trial and Sentencing StageAt the trial stage, before the sentence is passed, the offender’s “rehabilitative needs” warrant judicialconsideration in order to subject the offender to probation orders only in appropriate cases such as
misdemeanours relating to domestic violence. The offender can be rehabilitated with the intervention of thecommunity within which he committed the offence. Having considered the pre-sentencing reports, thepossibilities of rehabilitation and reintegration of the offender are required to be balanced against the needto protect society and “the interests of the victim” by the judicial authority at the sentencing stage. NCMs
are available in most of the jurisdictions in the process of sentencing by the court. In Japan, suspension ofexecution of sentence is utilized. In appropriate cases, it is incorporated with certain conditions in order toensure that the offender gets rehabilitated during the period of suspension. In the light of this practice theoffender may be basically subjected to a supervision and treatment within the community. Economic sanctions
such as fine and confiscation of property are recommended to be accompanied with other suitable measures.
However, community service orders are neither appropriate Nor proportionate for sex offenders although it
can be considered in domestic violence cases where the offence is a minor enough to achieve the purpose ofsentence. The probation orders have proved productive for combating recidivism when its process isconcerned. “Weekend Jail System” permits the offender to work during the weekdays so that he can earn tosupport his family. The offender serves his prison terms during the weekends. These weekenders take selfresponsibility to refrain from reoffending which is a requirement before the offender is released fully to thecommunity. This system can be used for minor crimes of offences relating to domestic violence.
C. Post-Sentencing StageAt the post sentencing stage, the community corrections system offers a solution for rehabilitation needsof the offender. In this system, the parolee can be released subject to certain conditions such as (i) report tohis supervising probation officer according to a set schedule, (ii) receive visits from the supervising officer athome, (iii) undertake work, (iv) refrain from travelling outside the country or certain territory (v) refrainfrom offending behaviour, and (vi) reside in an appropriate place (vii) continuing treatment programmes. Inaddition to that commutation of sentence, halfway houses, remission work or education release and pardon
can be used as NCMs.

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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers.

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D. Challenges and Recommendations
This paper will next deal with the challenges and the recommendations in application of NCMs.
Challenges:
1. Competent authorities such as judges and prosecutors as well as the policymakers are slow torecognize the norms of NCMs in the process of their decisions.
2. Difficulties in rehabilitation and supervision of offenders, for example lack of educational programmes
and vocational trainings.
3. Community acceptance of NCMs for understanding the reintegration process of the ex-offenders.
4. Guarantee of victim’s safety and security should be considered at all stages of the criminal justiceprocess.
Recommendations:
1. NCM to be incorporated into law and guidelines for competent authorities such as judges andprosecutors as well as the policymakers, for example, evidence-based research and surveys.
2. To conduct NCMs, Electronic Monitoring Systems can be effective at any stage with treatment
programmes. In this system, the offender’s movements including his approach to a certain address canbe monitored in order to prevent reoffending. It is, however, necessary to have the consent of theoffender.
3. Community assistance for supervision and rehabilitation, for example, public apology in the local
community, volunteer probation officers (VPOs), halfway houses, support groups (CoSA) and corporative
employers are necessary. To get community assistance, we have to build awareness programmes
including the implementation of VPO systems.
4. For protection of the victims, it is recommended to create shelters which offer crisis help, round-theclock secured housing and psychosocial support, advice and counselling to acute situations. This
service can be primarily offered to persons and families suffering from intimate partner violence or
the threat of such to women and children of all ages. It will be helpful to create supports groups forVAWC victims.

III. CONCLUSION
NCMs, as part of international legal norms in the field of criminal justice, are called upon to ensure anoptimal balance between rehabilitation of offenders, protection of victims of crimes and the interest of thecommunity. They are aimed to reduce recidivism or incorrigibility and custody.

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