ANNUAL REPORT FOR 1999
andRESOURCE MATERIALSERIES No. 57

UNAFEI
Fuchu, Tokyo, Japan

September 20011

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

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CONTENTS
INTRODUCTORY NOTE.................................................................. vii
PART ONEANNUAL REPORT FOR 1999
Main Activities of UNAFEI ...................................................................... 3
UNAFEI Work Programme for 2000 ..................................................... 14
Appendix ................................................................................................. 16
PART TWORESOURCE MATERIAL SERIES NO. 57
I. WORK PRODUCT OF THE 114TH INTERNATIONALSEMINAR“INTERNATIONAL COOPERATION TO COMBATTRANSNATIONAL ORGANIZED CRIME - WITH SPECIAL
EMPHASIS ON MUTUAL LEGAL ASSISTANCE AND
EXTRADITION”
Visiting Experts’ Papers• Merits of Multilateral Treaties on Extradition and on Mutual Legal
Assistance in Criminal Matters; Theory and Practiceby Hans G. Nilsson (European Union) ...................................... 35• Extradition and Legal Assistance: The Philippine Experienceby Severino H. Gana, Jr. (Philippines) ...................................... 50• Contemporary Problems of Extradition: Human Rights, Grounds
for Refusal and the Principle
by Michael Plachta (Poland) ...................................................... 64• International Cooperation in the Draft United Nations Convention
against Transnational Crime
by Michael Plachta (Poland) ...................................................... 87• The Lockerbie Affair: When Extradition Fails are the United
Nations’ Sanctions a Solution?
by Michael Plachta (Poland) ...................................................... 93• Extradition and Mutual Legal Assistance in Thailand
by Sirisak Tiyapan (Thailand) ................................................. 108• International Cooperation in Fighting Transnational Organized
Crime: Special Emphasis on Mutual Legal Assistance andExtradition
by John E. Harris (United States of America) ......................... 133
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Participants’ Papers• International Cooperation in Criminal Matter on Extradition and
Mutual Legal Assistance in Malaysia
by Abdul Jalal Bin Mohd. Yunus (Malaysia) .......................... 149• Extradition and Mutual Legal Assistance Treaties as a Panacea for
Organized Crimeby Sotonye Leroy Wakama (Nigeria) ........................................ 158• International Cooperation to Combat Transnational Organized
Crime - with Special Emphasis on Mutual Legal Assistance andExtradition
by Sh. Ahmad Farooq (Pakistan) ............................................. 166
Reports of the Seminar• Topic 1: Specific Problems and Solutions that arise in cases
involving international mutual legal assistance or extradition .. 177• Topic 2: Refusal of Mutual Legal Assistance or Extradition ....... 188• Topic 3: The Scope of Assistance to be Rendered to the Requesting
State in the Framework of Mutual Legal Assistance .................. 196
II. WORK PRODUCT OF THE 115TH INTERNATIONAL
TRAINING COURSE“CURRENT ISSUES IN CORRECTIONAL TREATMENT AND
EFFECTIVE COUNTERMEASURES”
Visiting Experts’ Papers• Current Issues in Correctional Treatment and Effective
Countermeasures: Overcrowding of Prisons. An Australian
Perspective
by Luke Grant (Australia) ........................................................ 207• Managing Prison Population Growth, Delivering Effective
Community-based Corrections and Treating Drug-related andFemale Offenders
by Laurenice L. Motiuk (Canada) ............................................ 248• Current Issues in Correctional Treatment and Effective
Countermeasures: Transfer of Sentenced Persons
by Candido Cunha (Council of Europe) ................................... 263• Notes on Crime and Punishment in Sweden and Scandinavia
by Hanns von Hofer (Sweden) .................................................. 284

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• Current Issues in Correctional Treatment and Effective
Countermeasures
by Somboon Prasopnetr (Thailand) ......................................... 314
Participants’ Papers• Crime Prevention: Current Issues in Correctional Treatment andEffective Countermeasures
by Muhoro Peterson Kamunyu (Kenya) ................................... 324• Current Issues in Correctional Treatment and Effective
Countermeasures
by Zulkifli Bin Omar (Malaysia) ............................................. 333• Current Issues in Correctional Treatment and Effective
Countermeasures
by Gunaratne Kuruppe (Sri Ldnka) ......................................... 352• Crime Prevention: Current Issues in Correctional Treatment andEffective Countermeasuresby Sivakorn Kuratanavej (Thailand) ....................................... 364
Reports of the Course• Practical Measures to Alleviate the Problem of Overcrowding
by Group 1 ................................................................................. 375• Practical Measures to Improve Prison Conditions
by Group 2 ................................................................................. 396• Current Trends and Problems of Prisoners, and Measures for
Effective Treatment
by Group 3 ................................................................................. 415
APPENDIX .......................................................................................... 435v

INTRODUCTORY NOTE
It is with pride that the Asia and Far East Institute for the Preventionof Crime and the Treatment of Offenders (UNAFEI) offers to theinternational community the Resource Material Series No. 57.
This contains the Annual Report for 1999, the work produced in two
UNAFEI international training programmes: the 114th International
Seminar (conducted from 17 January to 18 February 2000) and the 115th
International Training Course (conducted from 15 May to 7 July 2000).
The main themes of these training programmes were “International
Cooperation to Combat Transnational Organized Crime - with Special
Emphasis on Mutual Legal Assistance and Extradition”, and “Current
Issues in Correctional Treatment and Effective Countermeasures”,
respectively.
As an affiliated regional institute of the United Nations, UNAFEI has
paid utmost attention to the priority themes identified by the UN
Commission on Crime Prevention and Criminal Justice. The United
Nations has given special attention to the issue of transnational organizedcrime. Particularly, pursuant to the General Assembly resolution 53/111
of 9 December 1998, the Ad Hoc Committee on the Elaboration of aConvention against Transnational Organized Crime was created, for the
purpose of drafting a comprehensive international convention ontransnational organized crime. Last month (July 2000), the Ad Hoc
Committee completed its intensive drafting work which it embarked on
in January 1999. Taking this into consideration, UNAFEI decided toundertake a series of training programmes in fall and winter courses forthe coming few years under the general subject of “transnational organizedcrime”. The 114th International Seminar was the first of those to be
conducted. Discussions in the Seminar focused on mutual legal assistanceand extradition as the main tools of international cooperation.
UNAFEI took up correctional treatment as the main theme of the 115th
International Training Course, considering that many countries areconfronted with important issues such as overcrowding in correctional
facilities, improvement of prison conditions, an increase of drug-related
offenders and a shortage of effective treatment programmes. Duringvii

discussion in the Course, the Standard Minimum Rules for the Treatmentof Prisoners, adopted by the First United Nations Congress on thePrevention of Crime and the Treatment of Offenders, were often referred
to, to remind the participants of the importance of benchmarking bestpractices in correctional treatment.
In this issue, papers contributed by visiting experts, selected individual
presentation papers from among Course and Seminar participants, andreports of the Course and Seminar are published. I regret that not all
the papers submitted by the Course and Seminar participants could be
published. Also, I must request the understanding of the selected authors
for not having sufficient time to refer the manuscripts back to them before
publication.
I would like to pay tribute to the contributions of the Government ofJapan, particularly the Ministry of Justice and the Japan International
Cooperation Agency, and the Asia Crime Prevention Foundation forproviding indispensable and unwavering support to UNAFEI
international training programmes.
Finally, I would like to express my heartfelt gratitude to all who sounselfishly assisted in the publication of this series, in particular, theeditors of Resource Material Series No. 57, Mr. Hiroshi Iitsuka (Chief ofTraining Division) and Ms. Rebecca Findlay-Debeck (Linguistic Adviser),who so tirelessly dedicated themselves to this series.
August 2000

Mikinao Kitada
Director of UNAFEI

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MAIN ACTIVITIESPART ONEANNUAL REPORTFOR 1999• Main Activities of UNAFEI• UNAFEI Work Programme for 2000
• Appendix

UNAFEI

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MAIN ACTIVITIESMAIN ACTIVITIES OF UNAFEI(1 JANUARY 1999 - 31 DECEMBER 1999)

I. ROLE AND MANDATE
The Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI) was established in Tokyo, Japan in 1961 pursuant to an agreement
between the United Nations and the Government of Japan. Its goal is to contribute tosound social development in Asia and the Pacific region by promoting regional cooperationin the field of crime prevention and criminal justice, through training and research.
UNAFEI has paid utmost attention to the priority themes identified by theCommission on Crime Prevention and Criminal Justice. Moreover, UNAFEI has been
taking up urgent, contemporary problems in the administration of criminal justice inthe region, especially problems generated by rapid socio-economic change (e.g.,transnational organized crime, corruption, economic and computer crime and the reintegration of prisoners into society) as the main themes and topics for its training
courses, seminars and research projects.
II. TRAINING
Training is the principal area and priority of the Institute's work programmes. In
the international training courses and seminars, participants from different areas ofcriminal justice discuss and study pressing problems of criminal justice administrationfrom various perspectives. They deepen their understanding, with the help of lectures
and advice by the UNAFEI faculty, visiting experts and ad hoc lecturers. This so-called"problem-solving through an integrated approach" is one of the chief characteristics of
UNAFEI programmes.
Each year, UNAFEI conducts two international training courses (three months
duration) and one international seminar (one month duration). Approximately 60
government officials from various overseas countries receive fellowships from the Japan
International Cooperation Agency (JICA; a governmental agency for ODA programmes)
each year to participate in UNAFEI training programmes.
Training courses and seminars are attended by both overseas and Japaneseparticipants. Overseas participants come not only from the Asia-Pacific region but also
from the Middle and Near East, Latin America and Africa. These participants areexperienced practitioners and administrators holding relatively senior positions incriminal justice fields.
During its 39 years of existence, UNAFEI has conducted a total of 113 international
training courses and seminars, in which approximately 2700 criminal justice personnel
have participated, representing 98 different countries. In their respective countries,
UNAFEI alumni have been playing leading roles and holding important posts in thefields of crime prevention and the treatment of offenders, and in related organizations.

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ANNUAL REPORT FOR 1999
A. The 111th International Seminar
1. Introduction
From 18 January to 19 February 1999, 25 participants from 20 countries attended
the 111th International Seminar to examine the main theme of "The Role of Police,
Prosecution and the Judiciary in the Changing Society."
2. Methodology
Firstly, the Seminar participants respectively introduced the current position
regarding the role and function of criminal justice agencies in their country. Secondly,
General Discussion Sessions in the conference hall examined the subtopics of the main
theme. In sum, the participants comprehensively examined recent manifestations ofcrime which have been transformed by social developments such as industrialization,
urbanization and advancements in science and technology. How modern criminal justiceagencies are to respond to this change was analyzed in order to seek concrete
recommendations. In order to conduct each session efficiently, the UNAFEI facultyprovided the following three topics for participant discussion:
Topic 1: Effective measures for better detection of crime and more thoroughinvestigations;
Topic 2: The role of prosecution in the changing society; andTopic 3: Effective Countermeasures for Speedy Trial.
The chairperson, co-chairperson, rapporteur and co-rapporteur, who were elected foreach topic, organized the discussions in relation to the above themes. Subsequently, inthe conference hall, all the participants and the UNAFEI faculty seriously studied thedesignated subtopics and exchanged views. Final reports were compiled, based on thesaid discussions, and were ultimately adopted as the reports of the Seminar. These
reports have been printed in their entirety in the UNAFEI Resource Material Series
No. 55.
3. Outcome Summary
Of grave concern worldwide is the prevalence and complexity of transnationalorganized crime, which seems to be growing yearly. The manifestations and seriousnessof transnational organized crime are overwhelming; for example, the smuggling of illegal
migrants, money-laundering, large-scale corporate fraud, and illicit trafficking in drugs,
firearms, stolen motor vehicles, and - most appalling -women and children. These crimes,
as well as their perpetrators, are increasing exponentially. Moreover, transnationalorganized crime remains largely undetected, due to the fact that traditionally it iscommitted behind a veil of secrecy.
The proliferation of such crime poses a great threat at various levels of society. First,
the life and welfare of individual citizens are imperiled. Secondly, national security andthe rule of law are threatened. Moreover, in the extreme case, it may destabilize thefundamental framework of a nation. In this regard, the importance of detecting andpreventing such crime in every country and the international community cannot beemphasized enough.

4MAIN ACTIVITIESThe seriousness and heinousness of these crimes speak for themselves.
Countermeasures and recommended solutions to this problem may include:(i) Adoption of a police model whereby the political executive does not have unhinderedor direct control over police organizations.
(ii) Established recruitment/appointment criteria and incentives to increase the calibreof investigative, prosecuting and judicial personnel, including attractive conditionsof service; adequate equipment, training and facilities; promotion and higher
education opportunities.
(iii) Cooperation and coordination with the public and between investigative agencies.
(iv) Introduction of specific legislation relating to the admissibility of evidence gatheredby electronic surveillance and covert operations; confiscation of illicit proceeds
and anti-money laundering provisions; establishing a presumption against theaccused (shift in the burden of proof) in certain cases.
(v) Strategies to address the overloading of courts, including possible use of summary
proceedings, plea bargaining, and discretionary withdrawal and suspension.
(vi) Establish guidelines to facilitate speedy trial, including strict non-adjournment
policies; time limits for submission of expert reports and for completing trial;
sanctions against dilatory tactics of counsel; limiting the scope of preliminary
hearing activities.
While crime control is an issue concerning society as a whole, the criminal justicesystem – especially the police, prosecution and judiciary - is vested with a particularresponsibility in this regard. Thus it is imperative that relevant agencies addressthese changing issues from a proactive, as well as a reactive, position.
B. The 112th International Training Course
1. Introduction
UNAFEI conducted the 112th International Training Course from 12 April to 4 July
1999 with the main theme, "Participation of the Public and Victims for More Fair andEffective Criminal Justice Administration." This Course consisted of 27 participantsfrom 18 countries. The Institute's selection of this theme reflects its concern regarding
the often limited participation of the public and victims in criminal justice processes.
Facilitating meaningful inclusion and involvement requires the establishment, proper
implementation, and strengthening of programmes and services from the pre-trial
through to post-trial stages, and from a crime prevention perspective.
2. Methodology
The participants identified the obstacles to the participation of victims and the public
in criminal justice procedures and policies, and searched for effective measures tofacilitate involvement. In this regard, the underlying tension between the need to protect
the rights of the accused and the need to recognize victims' and the public's interest,
was acknowledged and explored with a view to reducing disparities.
The objectives were primarily realized through the Individual Presentations and Group
Workshop sessions. In the former, each participant presented the actual situation,
problems and future prospects of their country with respect to the main theme of the
Course. The Group Workshops further examined the subtopics of the main theme. To

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ANNUAL REPORT FOR 1999
facilitate discussion, the participants were divided into the following three groups under
the guidance of faculty advisers:
Group 1: Victim Assistance: Public Participation for More Effective Crime Prevention
and Law Enforcement;Group 2: Participation of the Public and Victims for More Effective Administration in
the Prosecution and the Judiciary; andGroup 3: Participation of the Public and Victims for More Effective Administration in
the Treatment of Offenders.
Each group elected a chairperson(s) and rapporteur(s) to organize the discussions.
The group members seriously studied the designated subtopics and exchanged theirviews based on information obtained through personal experience, the Individual
Presentations, lectures and so forth. Fourteen sessions were allocated for Group
Discussion. In the sixth, eighth and ninth week, Plenary Meetings were held to discuss
the interim outline of the Group Workshop reports and to offer suggestions and comments.
During the final Plenary Meetings in the tenth week, drafts of the Group Workshop
reports were examined and critiqued by all the participants and the UNAFEI faculty.
Based on these discussions, the Groups further refined their reports and presented
them in the Report-Back Session, where they were endorsed as the reports of the Course.
The full texts of the reports have been published in the UNAFEI Resource Material
Series No. 56.
3. Outcome Summary
Public participation and cooperation is an essential element of all aspects of criminal
justice administration, from crime prevention to the treatment of offenders. Regrettably,
many countries have not successfully obtained such participation and cooperation due
to a lack of public confidence in, and relevant policies related to, criminal justiceadministration.
In order to obtain public confidence and cooperation, the recognition, protection andincorporation of the rights and interests of victims of crime ('victims') in criminal justiceadministration is fundamental. Assistance and protection of the rights of victims isnecessary at all stages of the criminal justice process, from pre-trial to post-trial. In
this context, there are growing concerns that the current administration of the criminal
justice system has often resulted in the unfair treatment of victims.
Although assistance to, and the protection of, the rights and interests of victims andthe public are, in some jurisdictions, established; many countries (including Asian and
African) are still lacking in this regard. The following initiatives are some measuresthat may be taken to enhance public and victim involvement in the criminal justiceprocess:(i) Improving community policing through sensitivity training and organizational
re-structuring of the police services; and through public education campaigns.
(ii) Increasing victim services including crisis intervention, counseling, and advocacy
assistance and support.
(iii) Introduce a notification system for victims and, where necessary, the right to attend

6MAIN ACTIVITIES
trial as a spectator.
(iv) Expand victim participation in the criminal prosecution process and provide
opportunities for input on sentencing and appeal.
(v) Provide monetary redress/compensation to victims through accessible means.
(vi) Avail public support for both the penal and community-based treatment ofoffenders, particularly by use of volunteer probation officer (VPO) systems, victimoffender panels and work release programs.
Many countries have recently seen an increase in the number and seriousness ofcrime. However the prevention and control of crime, through the fair and effective
administration of criminal justice, cannot be achieved by governments alone. Public
and victim participation and cooperation play a pivotal role in crime prevention. Without
improvement in the means to facilitate this involvement, a fair and effective criminal
justice system will not be achieved.
C. The 113th International Training Course
1. Introduction
From 30 August to 18 November 1999, UNAFEI conducted the 113th International
Training Course with the main theme, "The Effective Administration of Criminal Justicefor the Prevention of Corrupt Activities by Public Officials." This Course consisted of 30
participants from 19 countries.
2. Methodology
The 113th Course endeavored to explore the best means to more effectively combat
corruption in public officials through the development of transparency and accountability,and by strengthening the criminal justice system. This was accomplished primarily
through the comparative analysis of the current situation and problems in the participating
countries. Our in-depth discussions enabled us to put forth effective and practicalcountermeasures to this problem, so as to improve the global fight against corruption.
This Training Course provided a forum for the exchange of information and views on
how criminal justice agencies in the respective countries detect, investigate and prosecutecorruption cases, as well as the problems and difficulties encountered in that regard.
Discussions also highlighted the importance of establishing more efficient systems andeffective countermeasures, and the need to increase international cooperation in thisfield in order to eradicate such crime.
The objectives were primarily realized through the Individual Presentations and theGroup Workshop sessions. In the former, each participant presented the actual situation,
problems and future prospects of their country with respect to the main theme of the
Course. The Group Workshops further examined the subtopics of the main theme. To
facilitate discussions, the participants were divided into the following three groups,
under the guidance of faculty advisers:
Group 1: Current Situation and Recent Trends in the Corrupt Activities of Public
Officials and Criminal Legislation against Corruption;
Group 2: Current Problems in Responding to the Corrupt Activities of Public Officials
at the Investigation and Trial Stages, and Solutions for them; and7

ANNUAL REPORT FOR 1999
Group 3: General Preventative Measures against the Corrupt Activities of Public
Officials.
Each group elected a chairperson(s) and rapporteur(s) to organize the discussions.
The group members seriously studied the designated subtopics and exchanged theirviews based on information obtained through personal experience, the Individual
Presentations, lectures and so forth. Seventeen sessions were allocated for Groupdiscussion.
In weeks five to ten, Plenary Meetings were held to discuss the interim outline of theGroup Workshop reports and to offer suggestions and comments. During the final
Plenary Meetings in the tenth week, drafts of the Group Workshop reports were examined
and critiqued by all the participants and the UNAFEI faculty. Based on these discussions,
the Groups further refined their reports and presented them in the Report-Back Session,
where they were endorsed as the reports of the Course. The reports will be published infull in the UNAFEI Resource Material Series No. 56.
3. Outcome Summary
Corruption is a social phenomena escalating in magnitude and form. Its activities
can manifest as bribery, undue influence or misuse of professional status for personal
gain, incorporating a range of traditional, punishable offences, including breach of trustand embezzlement.
Corruption undoubtedly disrupts the integrity and neutrality of public officials in
performing their duties. It breeds a feeling of distrust and unfairness toward the nationalor local government by the citizenry, and may ultimately weaken gravely or collapse
the national or local ruling government and economic structure of a country. It is alsosuggested that organized crime groups are involved in many corruption cases.
There are many common problems in responding to the corrupt activities of public
officials at the level of detection, investigation, prosecution and trial, although legal
frameworks and systems vary from country to country. One of the most importanttasks for the criminal justice system is to expose the corrupt activities of public officials
and to punish the wrongdoers effectively. The following countermeasures are suggested
as a means of achieving this goal and developing a preventative framework:(i) Clarify the responsibilities of public officials and educate them in matters including
conflict of interest, transparency and accountability.
(ii) Implement internal inspection programs, auditing and disciplinary actions,preferably conducted by outside agencies.
(iii) Introduce substantive domestic legislation against corruption, including broadinterpretation of the offence; increased punishment provisions; confiscation/
forfeiture of assets; and criminalize bribe-giving.
(iv) Improve investigative tools including the use of covert operations and wire-tapping
for corruption offences, and enhance co-ordination between different investigatingorganizations.
(v) Seek the cooperation of financial institutions and introduce mandatory disclosure
provisions for financial transactions.

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MAIN ACTIVITIES(vi) Introduce an ombudsman system and increase public awareness of the adverse
effects of corruption
With the globalization of economic activities, many countries have recently seen acorresponding increase in the number of corruption cases of a transnational nature.
The acknowledged difficulties of detecting, preventing and punishing corrupt activities
are increased in the international arena. In this context, including extradition provisions
for corruption offences in bi-lateral and multi-lateral agreements is one solution.
Needless to say, the prevention and exposure of corrupt activities are vital. The
clandestine nature of such activities obscures the ability of investigators to detect andexpose them. Other obstacles include the difficulty in securing the cooperation of thepeople involved in the case during investigation and trial; the scarcity of personnel andmaterial resources in the criminal justice system; laws limiting the authorized methodsof investigation; and the limited skill and/or low morale of the investigators. Without
meaningful commitment to the eradication of corruption by governments and individual
agencies/departments, through practical measures and legislative support, the combatof corruption in public offices will not be achieved.
III. SECOND EXPERTS MEETING ON CRIMES RELATED TO THE
COMPUTER NETWORKUNAFEI hosted the second Experts Meeting on Crimes Related to the Computer
Network from 25 October to 28 October 1999 in preparation for the Workshop on Crimes
Related to the Computer Network, as part of the Tenth United Nations Congress for thePrevention of Crime and the Treatment of Offenders. To this end, UNAFEI welcomed
representatives from all world regions to our institute to discuss Workshop issues interms of their significance to Member States.
UNAFEI willingly assumed responsibility to organize and host the Experts Meetings,
as well as to act as coordinator for the Workshop at the Congress, in response to arequest made during the twelfth Co-ordination Meeting of the United Nations Crime
Prevention and Criminal Justice Programme Network held in Courmayeur, Italy, 1997.
The first Experts Meeting was held at UNAFEI in October 1998. The work product of
this initial meeting was submitted to the eighth session of the Commission on Crime
Prevention and Criminal Justice in April 1999. The second Experts Meeting wasorganized to finalize preparations for the Workshop, based on the outcome of the firstExperts Meeting and subsequent administrative changes.
IV. TECHNICAL COOPERATION
A. Joint Seminars
Since 1981, UNAFEI has conducted 20 joint seminars under the auspices of JICA
and in collaboration with host governments in Asia and the Pacific. With the participationof policy-makers and high-ranking administrators, including members of academia,
the joint seminars attempt to provide a discussion forum in which participants canshare their views and jointly seek solutions to various problems currently facing criminal
justice administration in both the host country and Japan.

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ANNUAL REPORT FOR 1999
1. Thailand-UNAFEI Joint Seminar
The Thailand-UNAFEI Joint Seminar was held in Bangkok under the theme of"Community and Victim Involvement in Criminal Justice Administration" from 13 to
16 December 1999. The Government of the Kingdom of Thailand, through the Office of
the Attorney General, and UNAFEI organized the Joint Seminar. The Joint Seminar
was attended by high-ranking Thai government officials, representing all sectors of thecriminal justice system. The UNAFEI delegation comprised of the Director, Deputy
Director, four professors and an official from the National Police Agency of Japan. The
Joint Seminar concluded with a summary of each session and an oral presentation of
the resulting recommendations for the betterment of the Thai criminal justice system,as formulated by each session.
B. Regional Training Programmes
1. Costa Rica
In February 1999, the Preliminary Survey for the Regional Seminar on Effective
Measures for the Improvement of Prison Conditions and Correctional Programmes washeld in San Jose, Costa Rica. The Government of Costa Rica, through the United Nations
Latin American Institute for the Prevention of Crime and Treatment of Offenders(ILANUD), will now organize and host the Costa Rica Regional Seminar, with the supportof JICA and UNAFEI, as a result of the Preliminary Survey's findings. This seminar
will be held annually for five years and will target correctional officers in Latin America.
Under this scheme, two UANFEI professors attended the 1st International Training
Course on the Improvement of Prison Conditions and Correctional Programmes, from 7
to 21 August 1999.
2. Kenya
From 15 August to 5 October 1999, two UNAFEI professors were dispatched to Kenya
to assist the Children's Department of the Ministry of Home Affairs and National
Heritage in a project to develop nationwide standards for the treatment of juvenile
offenders and the prevention of crime by children and young persons.
3. Thailand
From 18 to 29 January 1999, two UNAFEI professors represented the Institute at
the Seventh Regional Training Course on "Effective Countermeasures against Drug
Offences and Advancement of Criminal Justice Administration", hosted by the Office of
the Narcotics Control Board, in Bangkok, Thailand.
C. Special Seminars for Senior Criminal Justice Officials of the People's
Republic of China
1. Fourth Special Seminar for Senior Criminal Justice Officials of the People's
Republic of China
The Fourth Special Seminar for Senior Officials of Criminal Justice in the People's
Republic of China, "Rational Structure of Criminal Justice and Relationship between
the Different Agencies of Criminals Justice," was held from 1 to 19 March 1999. Ten
senior criminal justice officials and UNAFEI faculty comparatively discussed
contemporary problems faced by China and Japan in the realization of criminal justice.

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MAIN ACTIVITIES
V. COMPARATIVE RESEARCH PROJECT
Reflecting its emphasis on the systematic relevance of training activities and priority
themes identified by the UN Commission, the research activities of the Institute aredesigned to meet practical needs, including those for training materials for criminal
justice personnel. For example, in 1999 UNAFEI updated its research by requesting
several experts from countries in the Asia-Pacific region to report on their respective
probation systems. UNAFEI subsequently compiled and published these reports in abook entitled "Adult Probation Profiles of Asia" and distributed copies internationally.
VI. INFORMATION AND DOCUMENTATION SERVICES
The Institute continues to collect data and other resource materials on crime trends,
crime prevention strategies and the treatment of offenders, from Asia, the Pacific, Africa,
Europe and the Americas, and makes use of this information in its training courses andseminars. The Information and Library Service of the Institute has been providing,upon request, materials and information to United Nations agencies, governmentalorganizations, research institutes and researchers, both domestic and foreign.
VII. PUBLICATIONS
Reports on training courses and seminars are published regularly by the Institute.
Since 1971, the Institute has issued the Resource Material Series, which contains
contributions by the faculty members, visiting experts and participants of UNAFEI
courses and seminars. In 1999, the 54th edition of the Resource Material Series was
published. Additionally, issues 98 to 100 of the UNAFEI Newsletter were published,including a brief report on each course and seminar (from the 111th to the 113th
respectively) and providing other timely information.
VIII. OTHER ACTIVITIES
A. Public Lecture Programme
On 10 February 1999, the Public Lecture Programme was conducted in the Grand
Conference Hall of the Ministry of Justice. In attendance were many distinguishedguests, UNAFEI alumni and the 111th International Seminar participants. This
Programme was jointly sponsored by the Asia Crime Prevention Foundation (ACPF),
the Japan Criminal Policy Society (JCPS) and UNAFEI.
Public Lecture Programmes increase the public's awareness of criminal justice issues,
through comparative international study, by inviting distinguished speakers from abroad.
This year, the Programme sponsors invited Mr. Suchart Traiprasit (Attorney General,
Office of the Attorney General, Thailand) and Judge Rya W. Zobel (Judge, U.S. District
Court for the District of Massachusetts and Director of Federal Judicial Centre, UnitedStates of America). Their lectures were entitled "The Role of Thai Prosecutors in theFight against Transnational Crime" and "An Overview of the United States Sentencing
Guidelines," respectively.

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ANNUAL REPORT FOR 1999
B. Assisting UNAFEI Alumni Activities
Various UNAFEI alumni associations in several countries have commenced, or areabout to commence, research activities in their respective criminal justice fields. It is,therefore, one of the important tasks of UNAFEI to support these contributions toimprove the crime situation internationally.
C. Overseas Missions
Mr. Chikara Satoh (Professor) and Mr. Ryosuke Kurosawa (Professor) represented
UNAFEI at the 7th Regional Training Course on "Effective Countermeasures against
Drug Offences and Advancement of Criminal Justice Administration", hosted by the
Office of the Narcotics Control Board, in Bangkok, Thailand, from 18 to 29 January
1999.
Ms. Kayo Konagi (Professor) and Mr. Shinya Watanabe (Professor) visited the Republicof Costa Rica from 14 to 27 February 1999 for the purpose of formulating an International
Training Course on the Improvement of Prison Conditions and Correctional Programmes.
Mr. Chikara Satoh (Professor) participated in the ACPF Working Group Meeting on"The Role of Public Prosecutors in the Changing World" in Bangkok, Thailand, from 15
to 18 February 1999.
Mr. Mikinao Kitada (Director) and Mr. Keiichi Aizawa (Professor) represented
UNAFEI at the 8th UN Commission on Crime Prevention and Criminal Justice, Vienna,from 26 April to 8 May 1999.
Mr. Masahiro Tauchi (Deputy Director), as a member-representative of UNAFEI and
the Japanese delegation, attended the Subgroup on High-tech Crime of the G8 Senior
Experts' Group on Transnational Organized Crime, held in Paris, France, from 17 to 22
May 1999.
Mr. Mikinao Kitada (Director), Mr. Akihiro Nosaka (Professor) and Mr. Kazuhiko
Kawasaki (Director of 2nd Training Division, Research & Training Institute of Ministryof Justice) visited the Peoples' Republic of China, from 19 to 26 July 1999, for the purposeof fostering international exchange in criminal justice administration.
Mr. Shinya Watanabe (Professor) and Mr. Chikara Satou (Professor) represented
UNAFEI at the 1st International Training Course on the Improvement of Prison
Conditions and Correctional Programmes, San Jose, Costa Rica, from 7 to 21 August
1999.
Mr. Shoji Imafuku (Professor) and Mr. Hiroshi Tsutomi (Professor) visited Kenya as
short-term visiting experts, as part of a JICA international assistance scheme for thePrevention of Crime by Children and Young Persons, from 15 August to 5 October 1999.
Mr. Hiroshi Tsutomi (Professor) represented UNAFEI at the 19th Asia and PacificConference of Correctional Administrators (APCCA), Shanghai, the People's Republicof China, from 24 to 29 October 1999.

12

MAIN ACTIVITIES
Mr. Keiichi Aizawa (Professor) attended the International Association of Prosecutors
4th Annual Conference General Meeting in Beijing, the People's Republic of China,
from 5 to 11 September 1999.
Mr. Keiichi Aizawa (Professor) represented UNAFEI at the International Conference
for Combatting Child Pornography on the Internet in Vienna, Austria, from 28 September
to 2 October 1999.
Mr. Mikinao Kitada (Director) attended the 14th Co-ordination Meeting of the Networkof United Nations Institutes, 18 November 1999, and the ISPAC International Conference
on Responding to the Challenges of Corruption, 19-20 November 1999, in Milan, Italy.
Mr. Masahiro Tauchi (Deputy Director), Mr. Shoji Imafuku (Professor) and Mr. Chikara
Satou (Professor) attended the ACPG International World Conference in New Delhi,
India, from 21 to 26 November 1999.
Mr. Chikara Satou (Professor) attended the ILEA Senior Criminal Justice Executive
Program on Organized and Transnational Crime in Bangkok, Thailand, from 29
November to 1 December 1999.
Mr. Mikinao Kitada (Director), Mr. Masahiro Tauchi (Deputy Director), Mr. Hiroshi
Iitsuka (Professor), Mr. Chikara Satou (Professor), Mr. Shinya Watanabe (Professor)
and Mr. Shoji Imafuku (Professor) attended the Thailand-UNAFEI Joint Seminar in
Bangkok, Thailand, from 13 to 16 December 1999.
D. Assisting ACPF Activities
UNAFEI cooperates and corroborates with the ACPF to further improve crime
prevention and criminal justice administration in the region. Since UNAFEI and the
ACPF have many similar goals, and a large part of ACPF's membership consist of
UNAFEI alumni, the relationship between the two is strong. Some examples ofcooperation and corroboration can be seen as follows:a. UNAFEI faculty members attended the ACPF working group meeting on prosecution
held in Thailand in February 1999.
b. UNAFEI dispatched faculty members to India to attend the ACPF International
World Conference in November 1999.
IX. HUMAN RESOURCES
A. Staff
In 1970, the Government of Japan assumed full financial and administrative
responsibility for running the Institute. The Director, Deputy Director and sevenprofessors are selected from among public prosecutors, the judiciary, corrections andprobation. UNAFEI also has approximately 20 administrative staff members, who areappointed from among officials of the Government of Japan, and a linguistic adviser.

13

ANNUAL REPORT FOR 1999

UNAFEI WORK PROGRAMMME FOR 2000
I. TRAINING
A. The 114th International Seminar
The 114th International Seminar, "International Cooperation to Combat
Transnational Organized Crime - with Special Emphasis on Mutual Legal Assistanceand Extradition", is scheduled to be held from January 10 to February 20, 2000. The
extensive international discussion, culminating in the drafting of the United Nations
Convention against Transnational Organized Crime, currently in process, prompted
the selection of this theme. The 114th Seminar purports to explore the ways and meansof strengthening and improving international cooperation in the fight against
transnational organized crime, particularly through effective implementation of themechanisms of mutual legal assistance and extradition. Sharing practical informationand experience on how other countries tackle common issues will facilitate our efforts
in the fight against transnational organized crime.
B. The 115th International Training Course
The 115th International Training Course, entitled "Current Issues in Correctional
Treatment and their Effective Countermeasures", is scheduled to be held from 15 May
to 7 July 2000. The shortened duration of this course is a result of UNAFEI's participationin the Tenth United Nations Congress for the Prevention of Crime and Treatment of
Offenders in Vienna, Austria, from 10 April to 17 April 2000. The 115th International
Training Course will examine current trends and issues in correctional treatment,
including the improvement of prison conditions and the effective transfer of prisoners
through the development of bilateral and multilateral treaties.
C. The 116th International Training Course
The 116th International Training Course, tentatively entitled "Effective Methods to
Combat Transnational Organized Crime", is scheduled to be held from 28 August to 17
November 2000. The 116th International Training Course will examine current trends
and issues in investigating transnational organized crime, particularly the expansionof investigative techniques in the areas of electronic surveillance, controlled delivery,
undercover operations and tracing crimes.
II. SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICE OFFICIALS OF
THE PEOPLE'S REPUBLIC OF CHINA
The Fifth Special Seminar for Senior Officials of Criminal Justice in the People's
Republic of China, "Participation of the Public and Victims in Criminal Justice
Administration", is scheduled to be held at UNAFEI from 28 February to 17 March
2000. Ten senior criminal justice officials and UNAFEI faculty will discuss contemporary
problems faced by China and Japan in relation to the above theme.

14

UNAFEI WORK
MAINPROGRAMMEACTIVITIES FOR 2000
III. TECHNICAL COOPERATION
A. Nepal-UNAFEI Joint Seminar
In December 2000, the Nepal-UNAFEI Joint Seminar is scheduled to be held in
Katmandu, Nepal. The Ministry of Home Affairs of the Kingdom of Nepal and UNAFEI
will organize the Seminar.
B. Regional Training Programmes
1. Thailand
In January 2000, two UNAFEI professors will travel to Thailand to assist the Royal
Thai Government and the Office of the Narcotics Control Board (ONCB) in organizing
the Eighth Regional Training Course on "Effective Countermeasures against Drug
Offences and the Advancement of Criminal Justice Administration."
2. Costa Rica
In August 2000, two UNAFEI professors will represent the Institute at the 2nd
International training Course on the Improvement of Prison Conditions and Correctional
Programmes, San Jose, Costa Rica.
3. Kenya
From July to August 2000, two UNAFEI professors will be dispatched to Kenya toassist the Children's Department of the Ministry of Home Affairs and National Heritage
in a project to develop nationwide standards for the treatment of juvenile offenders.
Additionally, in response to a request made by the Children's Department, UNAFEI isplanning to hold a special seminar (under the auspices of JICA) on treatment systems
for juvenile delinquents, to be attended by Kenyan officials working in this field.
IV. OTHER ACTIVITIES
A. Preparation for the Workshop at the Tenth United Nations Congress
UNAFEI, as coordinator, will continue to prepare for the Workshop on "Crime Related
to the Computer Network" to be held at the Tenth United Nations Congress on thePrevention of Crime and the Treatment of Offenders in Vienna, April 2000. UNAFEI is
acting as coordinator for the Workshop in response to a request made during the Twelfth
Co-ordination Meeting of the United Nations Crime Prevention and Criminal Justice
Programme Network held in Courmayeur, Italy, in 1997.

15

APPENDIXANNUAL REPORT FOR 1999

MAIN STAFF OF UNAFEI

Director

Mr. Mikinao Kitada

Deputy Director

Mr. Masahiro Tauchi

Faculty
Chief of Training Division, Professor

Mr. Hiroshi Iitsuka

Chief of Research Division, Professor

Mr. Shinya Watanabe

Chief of Information & Library Service
Division, Professor

Mr. Akihiro Nosaka

Professor

Mr. Keiichi Aizawa

Professor

Mr. Chikara Satou

Professor

Mr. Hiroshi Tsutomi

Professor

Mr. Shoji Imafuku

Linguistic Adviser

Ms. Rebecca Findlay-Debeck

Secretariat
Chief of Secretariat

Mr. Tadashi Ito

Deputy Chief of Secretariat

Mr. Miyoshi Chishima

Chief of General and Financial Affairs Section

Mr. Wataru Okeya

Chief of Training and Hostel Management

Mr. Yoshinobu Gohda

Affairs Section
Chief of International Research Affairs Section

Mr. Koji Imai<AS OF 31 DECEMBER 1999>

16

APPENDIX

1999 VISITING EXPERTS
THE 111TH INTERNATIONAL SEMINAR
Dr. Enamul Huq

President, ACPF Bangladesh, Bangladesh

Judge Suriakumari Sidambaram

District Judge, Singapore

Mr. Suchart Traiprasit

Attorney General,
Office of the Attorney General, Thailand

Judge Rya W. Zobel

Judge, U.S. District Court for the District ofMassachusetts & Director of the Federal
Judicial Centre, United States of America

THE 112TH INTERNATIONAL TRAINING COURSE
Mr. John Brian Griffin

Chief Executive Officer,
Core- Public Correctional Enterprise
Department of Justice, Victoria, Australia

Mr. Jarmal Singh

Deputy Director Operations, Police
Headquarters, Singapore Police Force,
Singapore

Dr. Uglijesa Zvekic

Deputy Director,
United Nations Interregional Crime andJustice Research Institute (UNICRI), Rome,
Italy

Dr. Ezzat A. Fattah

Professor Emeritus, School of Criminology,
Simon Fraser University, British Columbia,
CanadaMs. Heather CartwrightAttorney Advisor for Director,
Office of Victims of Crime, Office of Justice
Programs, Department of Justice, UnitedStates of America

Mr. Eberhard Siegismund

Deputy Director General,
Ministerialdirigent Bundesministerium derJustiz, Bonn, Germany

17

ANNUAL REPORT FOR 1999
THE 113TH INTERNATIONAL TRAINING COURSE
Mr. Donald Kenneth Piragoff

Mr. Thomas C. S Chan

18

General Counsel of Criminal Law Policy
Section,
Department of Justice, Ontario, Canada
Director, Corruption Prevention Department,
Independent Commission Against Corruption,
Hong Kong

Dr. Laurence Giovacchini

Administrateur Civil,
Service Central de Prevention de la Corruption,
Paris, France

Mr. Tunku Abdul Aziz

Vice-Chairman of the Board,
Transparency International, Kuala Lumpur,
Malaysia

Prof. A. Didrick Castberg

Professor of Political Science,
University of Hawaii at Hilo, Hawaii, UnitedStates of America

APPENDIX

1999 AD HOC LECTURERS
Mr. Michael A. DeFeo

Assistant Director, Office of Professional
Responsibility, Federal Bureau of Investigation,
Washington D.C, United States of America

THE 111TH INTERNATIONAL SEMINAR
Mr. Fumitaka Horiuchi

Director of Criminal Investigation Planning
Division, Criminal Investigation Branch,
National Police Agency, Japan

Judge Yasuro Tanaka

Presiding Judge, Chiba District Court, Japan

Mr. Kunihiro Matsuo

Director General of Criminal Affairs Bureau,
Ministry of Justice, JapanTHE 112TH INTERNATIONAL TRAINING COURSE
Mr. Hayato Takagi

Deputy Director Police Superintendent,
Police Policy Research Center, National Police
Agency, JapanMr. Hiroyuki Ohta

Director of Office for Crime Victims,
National Police Agency, Japan

Mr. Takeyoshi Hongo

Director-General of the Rehabilitation Bureau,
Ministry of Justice, JapanMr. Yoshio Suzuki

Professor, Kokushikan University, JapanMr. Haruhiko Higuchi

Deputy Director,
International Research & Training Institute for
Criminal Investigation, National Police
Academy, Japan

Mr. Osamu Ito

Judge, Tokyo District Court, Japan

Mr. Ichiro Sakai

Director-General, Corrections Bureau, Ministryof Justice, Japan

Mr. Kazuaki Morimoto

Attorney, Legislative Affairs Division,
Criminal Affairs Bureau, Ministry of Justice,
Japan
19

ANNUAL REPORT FOR 1999
Mr. Minoru Yokoyama

Associate Professor, Kokugakuin University,
Japan

Mr. Tatsuya Ohta

Associate Professor, Faculty of Law, Keio
University, Japan

Ms. Takako Konishi

Professor, Musashino Women’s University,
Japan

Dr. Kouichi Miyazawa

Professor, Universal Policy Department, Chuo
University, Japan

Mr. Juichi Kobayashi

Senior Researcher, National Research Instituteof Police Science, JapanTHE 113TH INTERNATIONAL TRAINING COURSE

20Mr. Haruhiko Higuchi

Deputy Director, International Research &Training Institute for Criminal Investigation,
National Police Academy, JapanMr. Shigeru Yotoriyama

Assistant Director, Second Investigation
Division, Criminal Affairs Bureau, National
Police Agency, Japan

Mr. Kunihiro Matsuo

Director-General of the Criminal Affairs
Bureau, Ministry of Justice, JapanMr. Haruo Kasama

Director of the Special Investigation
Department, Tokyo District Public Prosecutors
Office, Japan

Mr. Takashi NonoueCounselor, Criminal Affairs Bureau, Ministryof Justice, Japan

Mr. Masayuki Watanabe

Deputy Director, Research and International
Division, Board of Audit, Japan

Mr. Toshikazu Oobuchi

Judge, Tokyo District Court, JapanMr. Shigeru Edane

Associate Professor, Japan Industrial
University, Japan

Mr. Minoru Shikita

Chairman, Board of Directors,
Asia Crime Prevention Foundation, Japan

APPENDIX
Mr. Hiroshi Yokoyama

A s s i s t a n t D i r e c t o r, A d m i n i s t r a t i v e
Management Bureau, Management andCoordination Agency, JapanMr. Yoichiro Ueno

Senior International Affairs Officer,
National Personnel Authority, Japan

Mr. R. K Raghavan

Director, Central Bureau of Investigation, India

Mr. Toshiya Kawahara

Attorney, Public Security Division, Criminal
Affairs Bureau, Ministry of Justice, JapanTHE 111TH INTERNATIONAL SEMINAR
Overseas Participants
Ms. Mansouri Djahida

Magistrate, Ministry of Justice, Algeria

Ms. Rebeka Sultana

Senior Assistant Secretary, Ministry of Home
Affairs, Bangladesh

Mr. Carlos Antonio Gimar_es de Sequeira
Director, Identification Institute, Brazil
Mr. Wen-Xing Chen

Deputy Chief, Information Division,
Institute of Procuratorial Theory,
Supreme People’s Procuratorate, China

Mr. Ocampo Eljaiek Libardo Augusto
Coordinator, Human Rights Unit,
Attorney General’s Office, Colombia
Ms. Chit-Kwan So

Chief Inspector of Police, Commercial Crime
Bureau,Hong Kong

Mr. Paramvir Singh

Inspector General of Police,
Criminal Investigation Department, Tmil
Nadu, India

Mr. Mangasi Situmeang

Chief of Intelligence Section,
Tangerang District Public Prosecutors Office,Indonesia

Mr. Deng Phomsavanh

Public Prosecutor,
Vientiane Prefectural Public Prosecutors Office,
Laos

21

ANNUAL REPORT FOR 1999

1999 UNAFEI PARTICIPANTS

Mr. Selvanathan Shanmugham

Deputy Director, Legal Aid Bureau, Selangor,
Malaysia

Mr. Dias Francisco Balate

Inspector, Dire__o Nacionalia Polici_ deInvestiga__o Criminal (C.I.D.), Mozambique

Mr. Karki, Mohan Bahadur

Government Advocate,Appellate Government Advocate Office, Nepal

Mr. Muhammad Arif Chaudhry

Additional Director General,
Federal Investigation Agency, Islamabad,
Pakistan

Ms. Fuentes Rivera, Ana Maria

District Attorney, Public Ministry of Arequipa,
Peru

Mr. Lee, Hong-Hoon

Assistant Chief Prosecutor,
North Branch of Seoul District Prosecutor’s
Office, Republic of Korea

Mr. Maurice Benoit Tyte Morin

Assistant Commissioner of Police,
Seychelles Police Force, Mahe, Seychelles

Mr. Thabrew Mahadura Thilak Ravindra
Judge/Magistrate, District/Magistrate’s Court,
Homagama, Sri Lanka
Mr.Chalermsak Pattarasumantg

Chief Judge, Prakranong Kwaeng Court,
ThailandMr. Ho Trong Ngo

Chief of Science Department,
People’s Police University, Hanoi City, Vietnam

Japanese Participants

22

Mr. Morio Kubota

Public Prosecutor,
Tokyo District Public Prosecutors Office

Mr. Hideharu Arimitsu

Deputy Warden, Treatment Division,
Morioka Juvenile Prison

APPENDIX
Ms. Takako Naomoto

Director of General Affairs Division,
Chubu Regional Parole Board

Mr. Kazunori Nakada

Professor (Attorney),
Research & Training Institute of the Ministryof Justice

Mr. Yoshihisa Denda

Judge, Tokyo District Court

Mr. Shigeru Kawarazuka

Police Superintendent, The 3rd Mobile
Investigation Unit, Metropolitan Police
Department

THE 112TH INTERNATIONAL TRAINING COURSE
Overseas Participants
Ms. Wang Ping

Judge, High People’s Court of Beijing, China

Mr. Alvaro Caro Melendez

Lieutenant Colonel, National Police, Colombia

Mr. Moustafa Ahmed Genidy Abdin Major/ Criminal Investigation Officer,
General Department for Giza Investigation,
Egypt
Mr. Mansa Ram

Officer in Charge, Suva Prison, Fiji

Mr. Pa Hamady Jallow

Officer, Commanding Farefenni Division,
Gambia Police Force, Gambia

Mr. Tai Kin Man

Superintendent (Staff Relations and Welfare),Hong Kong Correctional Services Department,
Hong Kong

Mr. Jyotirmoy Khosla

Additional Legal Adviser, Department of Legal
Affairs, Ministry of Law, Justice and Company
Affairs, New Delhi, India

Mr. Sh. Darmawel Aswar

Public Prosecutor, Attorney General’s Office,Directorate of Economic & Finance,
Deputy Attorney General for Intelligence
Affairs, Jakarta, Indonesia

23

ANNUAL REPORT FOR 1999
Mr. John Isaac Odongo

Deputy Provincial Prisons Commander,
Provincial Prisons Commander ’s Office
Eastern, Embu, Kenya

Mr. Ghazali Bin Hj.Md.Amin

Superintendent of Public Relations (Public
Relations Branch), Royal Malaysia Police Bukit
Aman, Malaysia

Mr. Nawaz Ul-Huq Nadeem

Assistant Director, Officer-in-Charge,
NCB Pakistan-Interpol, Islamabad, Pakistan

Mr. Mathew Peter Himsa

Assistant Commissioner of Correctional
Service, Personnel Management & Training,
P.N.G. Correctional Service, Papua New Guinea

Ms. Donna Lynn Caparas

Project Evaluation Officer V, Division Chief,
Criminological Research Division,
Crime Prevention & Coordination Service,
National Police Commission, The Philippines

Mr. Ha Young-Hoon

Correctional Officer,
Taejeon Regional Correctional Headquarters,
Republic of Korea

Mr. Maxim Antoine Tirant

Assistant Superintendent, Seychelles Police
Force, Mahe, Republic of Seychelles

Mr. Ravi Wijegunawardena

Assistant Superintendent of Police, Colombo
Office, Sri Lanka

Ms. Pornpitr Norapoompipat

Director, Personnel Administration Division,
Department of Corrections, Nonthaburi
Province, Thailand

Japanese Participants

24

Mr. Hideki Igeta

Assistant Judge, Tokyo District Court

Ms. Noriko Komori

Probation Officer, Tokyo Probation Office

Mr. Takehiko Mukaigawa

Professor, Training Institute for Correctional
Personnel

Ms. Chikako Nakajima

Specialist (Medical and Classification Section),
Tokyo Regional Correction Headquarters

Mr. Nobuo Nakamura

Public Prosecutor,
Fukushima District Public Prosecutors OfficeAPPENDIX
Ms. Tokiko Sugawara

Senior Immigration Control Office,Tokyo Immigration Office, Yokohama Branch

Mr. Hisashi Uruga

Family Court Probation Officer, Nagano Family
Court

Mr. Kouji Yamada

Probation Officer, Hiroshima Probation Office

Ms. Emi Yoshida

Public Prosecutor,
Tokushima District Public Prosecutors Office

Mr. Haruhiko Ishida

Police Inspector, National Police Agency

THE 113TH INTERNATIONAL TRAINING COURSE
Overseas Participants
Mr. Md Kamal Uddin Bhuiyan

Senior Assistant Secretary, Ministry of Home
Affairs, Bangladesh

Mr. Luis Fernando Viana Artigas Jr.
Police Chief, State of Parana, Civil Police
Department, Brazil
Mr. Li Hai-Teng

Section Chief, Research Division,
Economic Crime Investigation Department,
Ministry of Public Security, China

Mr. Ruben Anthony Maitland

Inspector, Criminal Investigation Department,
Royal Grenada Police Force, St Georges,
GrenadaMr. Chandrashekara

Inspector General of Police, Corps of Detectives,
Police Department, Government of Karnataka,
India

Mr. Yudi Handono

Head of Public Criminal Section,
Bandar Lampung District Attorneys’ Office,Indonesia

Mr. Omur Nogoyev

Consultant, the Constitutional Court of the
Kyrgyz Republic, Kyrgyzstan

Mr. Asmadi Bin Hussin

Assistant Director, Legal Aid Bureau of
Malaysia, Malaysia

25

ANNUAL REPORT FOR 1999
Mr. Onuoha Emmanuel Ifeanyi

Officer-in-Charge, Management Information
Systems, Interpol Section, Criminal
Investigation Department, Nigeria Police
Force, Nigeria

Mr. Justice Sardar Muhammad Raza
Judge, Peshawar High Court, Pakistan
Mr. Joma J.A.Zidan

Crime Scene Expert, Preventive Security
Organization, Palestine

Mr. Roderick Kamburi

Acting Director, Leadership Division,
Ombudsman Commission of P.N.G,
Port Moresby, Papua New Guinea

Mr. Nelson Nogot Moratalla

Deputy Director / Dean of Academic,
Philippine National Police Academy,
Philippine Public Safety College, The
Philippines

Mr. Nihal Sunil Rajapaksa

Additional District Judge, District Court,
Colombo, Sri Lanka

Mr. Errol Ozil Hinson

Inspector of Police, Criminal Investigation
Department, Royal Saint Vincent Police Force,Saint Vincent, West Indies

Mr. Pravit Roykaew

Senior State Attorney, International Affairs
Department, Office of the Attorney General,
ThailandMr. Hector Efrain Castillo Guevara Chief of Police, Disciplinary Division of Judicial
Police, Venezuela
Mr. Nguyen Thanh Hai

Senior Inspector, The State Inspection of Viet
Nam, Viet Nam

Japanese Participants

26

Mr. Tamotsu Hasegawa

Public Prosecutor,
Tokyo District Public Prosecutors Office

Mr. Hiroshi Matsui

Public Prosecutor,
Yokohama District Public Prosecutors Office

Mr. Yuji Suzuki

Public Prosecutor,
Hiroshima District Public Prosecutors OfficeAPPENDIX
Mr. Naoki Ujita

Chief Program Supervisor, Osaka Prison

Ms. Kyoko Fujino

Chief Specialist, Hachioji Juvenile
Classification Home

Ms. Yoko Nihei

Probation Officer, Urawa Probation Office

Mr. Yoji Tanaka

Probation Officer, Yamaguchi Probation Office

Mr. Masaki Kitahara

Immigration Inspector, Osaka Immigration
Office, Kyoto Branch

Mr. Yasushi Hatayama

Assistant Judge, Osaka District Court

Mr. Yasuhiro Muraki

Judge, Tsu District Court

Mr. Tetsuya Yamaji

Maritime Safety Officer,
1st Regional Maritime Safety Headquarters

Mr. Masahiro Okamura

Professor, Institute of Public Security
Investigation Agency, Public Security
Investigation Agency

27

ANNUAL REPORT FOR 1999

FOURTH SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICEOFFICIALS OF THE PEOPLE’S REPUBLIC OF CHINA

28

Mr. Xian-Ding Pei

Judge,
Supreme People’s Court of the People’s Republicof China

Mr. Hua Dong

President of FengTai District Court,
Beijing FengTai District Court

Ms. Yun-Shan Bai

Chief Judge of No.2 Criminal Justice Division,
Beijing High People’s Court

Mr. Ai-Dong Jiang

Division Chief, General Office, Ministry ofJustice

Mr. Zheng-Guo Zhao

Vice-Director of the Research Office,
The Research Office of the Prison
Administration Bureau, Ministry of Justice

Mr. Yi Zhao

Vice-Section Chief, Rehabilitation-ThroughLabor Bureau, Ministry of Justice

Mr. Jian-Ping Zhao

P u b l i c P r o s e c u t o r, S u p r e m e P e o p l e ’s
Procuratorate of the People’s Republic of China

Mr. Jie XianVice-Section Chief, Assistant Procurator,
Office of Law and Policy Research,Supreme People’s Procuratorate of the People’s
Republic of China

Ms. Ni-Na Lin

Section Chief of the General Office,Department of Public Safety,
Ministry of Public Security of the People’s
Republic of China

Mr. Yong-Sheng Wang

Vice-Section Chief of Police Legislation,
Police Legislation Department,
Ministry of Public Security of the People’s
Republic of China

APPENDIX

DISTRIBUTION OF PARTICIPANTS BY PROFESSIONALBACKGROUNDS AND COUNTRIES(1st International Training Course-115th International Seminar,
U.N. Human Rights Courses and 1 Special Course)

19
8
3

1

2

1

12
1
4
18

3

53

4
1

4
3
1

12
10

6
2

7

21

18
20
4
29
1

5
11
2
36
1

1
31
25
1
33
6
12
20
2
13
2

5
182

2
188

7
336

1
27
17
1
17
4
10
21
12
21
2
1
10
279

5

10
40

24
7
14
6
5

3
1

9
1
3

1

3
2
5

7
1
6

5

2
2

19

4

3

31

7

3

7

1

2

8
3
10
18
1
14

3

9

3
1

10
10

7

10

1

174

35

61

4

1

1

5

3

2
3

1

6

1

3
2

4

Total

10
20
11
3

3

23
56
3
6
5
35
66
89
3
99
1
41
1
28
4
9
2
100
1
22
112
1
2
78
2
67
1
2
5 116
15
1
73
1
1 105
21
1 144
7
1
1
1
29
20 1,363
2

5

2
2
9
11
46
19
8
5
4
4
2
6

Others

4
3
11
14
13
18
5
5

4

Training &Resarch Officer

4Social Welfare
Officers

3113Child Welfare
Officers

Corrctional
Officials (Adult)

5

Family Court
Investigation Officers

Police Officials

8
11

Probation/Parole
Officers

PublicProsecutors

7
19

Correctional
Officials (Juvenile)

JudgesCountry
Afghanistan
Bangladesh
BhutanBrunei
Myanmar
China
Hong Kong
India
Indonesia
Iran
Iraq
JordanCambodia
Oman
Korea
KyrgyzLaos
Malaysia
Maldives
Mongolia
Nepal
Pakistan
Palestine
Philippines
Saudi Arabia
Singapore
Sri Lanka
TaiwanThailandTurkeyUnited Arab Emirates
Uzbekistan
Viet Nam
ASIA

Judicial and Other
Administration

Professional
Background

3
1
1

8

4
1

4
43

1
37

29

ANNUAL REPORT FOR 1999
Total

OthersTraining &Resarch Officer

Social Welfare
Officers

Child Welfare
Officers

Family Court
Investigation Officers

Probation/Parole
Officers

Correctional
Officials (Juvenile)

2

1
2

2
1

1
3
1
6

Corrctional
Officials (Adult)

3

Police Officials

PublicProsecutors

30

JudgesCountry
Algeria
Botswana
Cameroon
Cote d'Ivoire
Egypt
Ethiopia
GambiaGhana
GuineaKenya
LesothoLiberia
Madagascar
Mauritius
MoroccoMozambique
NigeriaSouth Africa
Seychelles
Sudan
Swaziland
Tanzania
ZambiaUgandaZimbabwe
AFRICA
Australia
VanuatuFiji
Kiribati
Marshall Islands
Micronesia
Nauru
New Zealand
Papua New Guinea
Solomon Islands
Tonga
Western Samoa
THE PACIFIC

Judicial and Other
Administration

Professional
Background

4

1
1

1
1
1
2
3
2
10
1

2

1

1
7

2

6
2

1
1
1
1
1
1

1

2
4

1
23

6
1
1

3
1

4

13

10
1

1

8

4
1
4
1
3
13
2
2
6
3
2
65

16

1
19

13

1
5

1
1
1

1

2

1
1
0

9
1

0

0

0
1

8

3

1

3
1

1
10
3
2
1
25

3
1
2

12

1
1
11
2
6
1
45

9

2

2
24

2

1
1

0

1
5

0

0

3

1

1
3

5
3
2
2
5
4
2
5
3
36
3
1
1
1
5
3
11
2
4
19
2
14
7
4
3
147
3
1
48
1
4
1
1
2
38
5
12
4
120

APPENDIX

1
1
2
1
3
3

3
1
4

2
3
1

13
2
3

1
2
1
1
1

4

1
1
1
3
3
1

1
1
1

4
1

10

4

2
9
1

1
1
1

1

1
1
1
24

1
1
19

15

1

7
49
1

7

2

0

1
1

0
78
299

0
70
107

0
165
240

0
55
60

2

0

3

0
38
44

0
2
48

0
47
96

1
1

2
102
455

0
132
348

0
217
442

1
1
3
86
584

Total

1
1
1

OthersTraining &Resarch Officer

Social Welfare
Officers

Child Welfare
Officers

Family Court
Investigation Officers

Probation/Parole
Officers

Correctional
Officials (Juvenile)

Corrctional
Officials (Adult)

2

Police Officials

PublicProsecutors

2

JudgesCountry
Argentina
Barbados
BelizeBolivia
BrazilChile
Colombia
Costa Rica
EcuadorEl Salvador
GrenadaGuatemalaHonduras
Jamaica
MexicoNicaragua
PanamaParaguay
Peru
Saint Lucia
Saint Vincent
Trinidad and Tobago
Venezuela
U. S. A. (Hawaii)
NORTH & SOUTH AMERICA
Bulgaria
Hungary
Macedonia
PolandLithuania
EUROPEJAPAN
TOTALJudicial and Other
Administration

Professional
Background

5
1
2
2
1
19
5
11
1
13
2
6
1
1
1
3
4
1
1
4
1
10
23
2
2
1
2
10
1
7 129
1
1
1
1
1
5
0
50 1,042
83 2,806

31

MAIN ACTIVITIESPART TWORESOURCE MATERIAL SERIES
No. 57Work Product of the 114th International Seminar“INTERNATIONAL COOPERATION TO COMBAT TRANSNATIONALORGANIZED CRIME – WITH SPECIAL EMPHASIS ON MUTUALLEGAL ASSISTANCE AND EXTRADITION”

UNAFEI33

114TH
INTERNATIONAL
TRAINING
COURSEVISITING
EXPERTS’
PAPERSVISITING EXPERTS’ PAPERS

MERITS OF MULTILATERAL TREATIES ON EXTRADITIONAND ON MUTUAL LEGAL ASSISTANCE INCRIMINAL
MATTERS; THEORY AND PRACTICE
Hans G Nilsson*,**I. INTRODUCTION
Co-operation in criminal matters hasdeveloped at rapid pace in Europe over the
past 5-10 years. The major contributing
factor to this development has been theincorporation of criminal law co-operation
into the objectives of the European Union
by the adoption of the so-called Treaty ofMaastricht (entry into force on 1 November
1993), which defined, in its article K.1,
judicial co-operation in criminal matters asa question of “common interest” to theMember States of the European Union.
Until then, criminal law co-operation in
Europe had taken place, since 1957, within
the framework of the Council of Europe,
an international, intergovernmentalorganisation which has its seat in
Strasbourg and has currently 41 Member
States, including all 15 Member States of
the European Union and a number ofCentral and Eastern European States sucha s H u n g a r y, P o l a n d , t h e R u s s i a n
Federation and Ukraine.
With the advent of a number of terrorist
organisations in (among other States) Italy,
S p a i n a n d G e r m a n y, c o - o p e r a t i o n
intensified in relation to certain types ofoffences already in the 1970s. In the
middle of the 1980s, however, some of theMember States of the European Union* Head of Division, Judicial Co-operation, General
Secretariat of the Council of the European Union,
Brussels, European Union**The views expressed are those of the author and do
not necessarily represent the views of theinstitution for which he works.

decided to intensify their co-operation
through more formalized channels. This
took the form of the creation of someworking groups within the framework of
the European Political Co-operation set up
under the Single European Act in 1987 and,in particular, by the adoption of the socalled Schengen Implementation
Agreement (often referred to as “theSchengen Convention”) in 1990. This latter
agreement has now become part and parcelof the general legal framework of theEuropean Union (in principle binding on
13 of the 15 Member States - the exceptions
are UK and Ireland) with the entry into
force, on 1 May 1999, of the Treaty of
Amsterdam.
The idea behind the Schengen cooperation, which largely joins the objectivesof the European Union, is to create one
single “area” where all border controls are
abolished and there is free movement of
persons, goods, capital and services.
However, in order to attain that objective,
it is also necessary to ensure that the
opening up of the borders do not create
uncontrolled immigration or increased
possibilities for criminals to commit theirdeeds without punishment. Therefore, socalled “compensatory measures” needed tobe adopted, inter alia in the field of mutual
assistance in criminal matters and inrespect of extradition. I will deal with thesignificance of these compensatory
measures to international co-operation
later.
In spite of the developments that havetaken place within the European Union
over the past 5-10 years, it is fair to say
35

RESOURCE MATERIAL SERIES No. 57
that a substantial part of judicial cooperation in criminal matters is still based
to a large extent on the instruments of theCouncil of Europe, although in practicesome 75 -90 % of all requests for mutual
assistance are made between the Member
States of the EU. This is likely to change
within the next 10 years with theintensified co-operation with the 13
applicant States that wish to become
members of the European Union.
The European Conventions on
Extradition and on Mutual assistance incriminal matters, drawn up in 1957 and in
1959, respectively, have been ratified by all
15 Member States of the European Union(the Extradition Convention has been
ratified by an additional 24 States and the
MLA Convention by another 22 States,
figures which show their importance to cooperation in criminal matters within thewider family of European States). The
additional protocol to the MLA Convention
has been ratified by 13 of the Member
States of the EU whereas the two
additional Protocols to the Extradition
Convention have been ratified by 6 and by
11 Member States of the EU, respectively.
II. MUTUAL ASSISTANCE IN
CRIMINAL MATTERS
A. Basis for Mutual Assistancewithin the European Union
The single most important instrumentin this context is, as previously indicated,
the Council of Europe Convention of 1959
on mutual assistance in criminal matters,
as modified by the additional protocol of
1978. At the time when it was adopted it
was a very innovative instrument, and it
has certainly proved its value over theyears. In principle, all requests for mutual
assistance made within the European
Union are made on the basis of theConvention (exceptions are found in Nordic
co-operation, Benelux co-operation and in36

relation to the 1990 Laundering
Convention of the Council of Europe).
The Convention is designed to cover thewidest measure of mutual assistance incriminal proceedings. It provides, ingeneral, that the requested party shall
execute letters rogatory for the purpose of
procuring evidence or transmitting articles
to be produced in evidence in criminal
proceedings. It also provides for service ofdifferent types of procedural documents
and the appearance of witnesses, experts
and prosecuted persons for the purpose of
criminal proceedings.
Regarding procedure, the main rule isthat requests are dealt with between theCentral Authorities, i.e. in principle the
Ministry of Justice, of the parties. In
urgent cases, the judicial authority may
address the letter rogatory directly to its
counterpart in the requested State andmay, for that purpose, use Interpol
channels. The return of the letter rogatory
must however be made through the Central
Authority. In principle, requests may besent in any of the official languages of theCouncil of Europe (i.e. English or French
although reservation possibilities exist).
The Convention does not require that arequest for mutual assistance must be
granted in every case. In particular, parties
may refuse to execute requests which arelinked to essential interests and to politicalor fiscal offences and on the grounds ofnational security. However, the exception
for fiscal offences has been eliminated by
the 1978 Protocol. In addition, parties
having made a declaration to that effect,
may refuse requests for search and seizureon the grounds of:(i) double criminality,(ii) non-extraditable offence, or(iii)non-compatibility with its law.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The 1959 Convention is supplemented
by a number of instruments or
arrangements. There are, for example, thespecial arrangements between the Nordic
countries and the Benelux Treaty of 1962,
as modified by a Protocol of 1974. There
are also mutual assistance provisions in,for example, the 1990 Council of Europe
Convention on money laundering, search,
seizure and confiscation of the proceedsfrom crime. There are also the mutual
assistance provisions of the 1990 Schengen
Convention.
It should in this context be noted thatthe relevant Schengen provisions do not so
far apply to the UK and Ireland. However,that will almost certainly change in the
future.
The mutual assistance provisions of the
Schengen Convention are designed tosupplement and facilitate the applicationof the 1959 Convention and the Benelux
Treaty. The Schengen Convention
provides, in particular, for the following:(i) Mutual assistance in relation to certain
administrative proceedings which maylead to criminal proceedings andcertain proceedings which are linked tocriminal proceedings (Art. 49),(ii) Mutual assistance regarding excise
duties, VAT and customs duties (Art.
50),(iii)The possibility of refusing requests forsearch and seizure is limited ascompared with the 1959 Convention(Art. 51),(iv) Procedural documents may to a large
extent be sent directly by post to
persons in the territory of other
Contracting Parties (Art. 52),(v) Requests for mutual assistance may, asa rule, be processed directly between
the judicial authorities involved (Art.
53).

It is in particular in relation to the last
mentioned article where it can be said that
the Schengen Convention has changed, oris about to change, mutual assistancewithin the European Union.
As the 1959 Convention only provided
for the possibility of direct contacts between
judicial authorities in cases of urgent
requests, this leads in practice to the useof direct contacts in relatively few cases.
The judicial authorities preferred to send
their requests via the “normal channel”.
This could in practice mean that a requestfrom an investigating judge would be given
to the local prosecutor, who would send therequest via the hierarchy to the prosecutor
at the Court of Appeal who would forward
the request to the General Prosecutor who,
in turn, would forward the request to the
Ministry of Justice, which perhaps would
ensure translation of the request via the
Ministry of Foreign Affairs. In therequested State the request would possibly
be dealt with in the same (inverted) orderand the end result would be that the mere
process of sending the request andtranslating the documents would take 612 months.
The Schengen Convention has radicallychanged the situation in a number ofMember States of the EU and is in theprocess of changing it in others, although
it may be said that “old habits die hard”
for some judicial authorities who still prefer
to use the old procedures.
A country like the Netherlands receives
some 26,000 letters of request on a yearlybasis. Only about 10 % are received at theCentral Authority (mostly from non-EU
Members) and the remaining part is dealt
with directly by the judicial authorities.
The situation in other countries, such as
Belgium and France is similar and changes
are under way in Spain, Portugal and Italy.
The Nordic co-operation has for decades

37

RESOURCE MATERIAL SERIES No. 57
been based on direct contacts between
judicial authorities and has, to some extent,
served as a model and a precursor to thedevelopments in the rest of Europe.
B. Achievements of the European
Union
Within the EU a lot of work has been
carried out in the area of mutual assistancesince the introduction of formalised cooperation in the field of justice and homeaffairs following the entry into force of theMaastricht Treaty. In particular, thefollowing steps have been taken:(i)

The EU Council adopted in 1997 an
Action Plan to combat organizedcrime. The plan is multidisciplinary
and it applies to police, customs andjudicial co-operation as well as
preventive measures. Regarding
mutual assistance, the importanceof the adoption of the draft EU
Convention on that topic has beenstressed. The fight against money
laundering is also an essential
element in the plan.

(ii)

Further strategic elements havebeen added by the 1998 Action Planof the EU Council and theCommission on how best to
implement the provisions of the
Amsterdam Treaty on an area of
freedom, security and justice. That
Action Plan also attached great
importance to improving andspeeding up judicial co-operation,
especially in view of thedevelopment of intensified police cooperation.

(iii)

In December 1997, the EU Council
adopted a Joint Action establishinga mechanism for evaluating theapplication and implementation at
national level of international
undertakings in the fight against

38

organized crime as part of theimplementation of the 1997 Action
Plan. Under that instrument, a
number of Member States havealready been evaluated in relation
to mutual legal assistance andurgent requests for the tracing andrestraint of property. The procedure
followed is that, first, aquestionnaire is issued and replied
to by each Member State regarding
the issues to be examined. Then
independent teams of experts visit
the relevant authorities of theMember States to gather further
information. This typically involves
visiting the Ministry of Justice, theprosecution authorities and thepolice (Interpol office). On thatbasis, the experts draw up a draft
report containing a description of
the facts and conclusions withrecommendations. The report isthen finalised in collaboration with
the Member State visited andadopted by the Multidisciplinary
Working Party on Organized Crime,
which is a Council working groupspecifically mandated to deal with
the Action Plan on organized crime.
The report remains confidential
unless the Member State evaluateddecides to make it public, which, sofar, always has been the case. The
process has proved to be extremely
useful. In this way all Member
States gain information on how thesystems of other Member Stateswork in practice and by the end of
the process a kind of handbook on
how MLA works in practice will
have been drafted. Certain
problems are identified to beaddressed, not only in the Member
State visited but also at moregeneral level. The evaluation
programme is a good example offocusing not only on the need to have

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
strong legal provisions on mutual
assistance in international
agreements, but also on the need totake appropriate legislative andadministrative measures atnational level for the purpose of
ensuring efficient co-operation.
(iv)

(v)

practical measures.
The Network, which so far has
met 5 times, has its own website
where legal instruments andratification status can be found(see http://ue.eu.int/JAI) and is in
the process of creating its own
Virtual Private Network - an
Intranet - which can be used fortransmitting requests,
information and for creating
discussion groups. A CD-ROM has
been produced containing thesame information and another isbeing produced which contains
information on special
investigative techniques, judicialorganisation and contact data forthe contact points.

In December 1998, the EU Council
adopted a Joint Action on money
laundering, the identification,
tracing, freezing, seizing andconfiscation of instrumentalities
and the proceeds of crime. This
instrument has, in particular, as its
purpose to ensure efficient
implementation of the 1990 Councilof Europe Convention on money
laundering, bearing in mind also the
EU Directive of 1991 on money
laundering and the 1988 United
Nations Convention against illicit
traffic in narcotic drugs andpsychotropic substances.

• A joint Action on good practice inmutual legal assistance incriminal matters. The instrument
requires each Member State toprovide a statement of goodpractice, which must include
certain minimum undertakings(e.g. to acknowledge requests
where requested to do so, to givepriority to requests marked“urgent” etc.). These statements
have been prepared by Member
States and have been madeavailable to the European Judicial
Network. Member States are also
obliged to periodically review theircompliance with their statementsof good practice.

In June 1998 the Council adopted
two instruments:• A Joint Action on the creation of
the European Judicial Network.
The purpose of the instrument is
to set up a network of judicial
contact points and Central
Authorities in order to facilitate
judicial co-operation and to help
establish direct contacts between
authorities involved in mutual
assistance. The Network has
regular meetings in Brussels andin Member States for contact
points to get to know each otherand for discussing practical andlegal problems encountered.
Where appropriate, experience
gained may be fed into therelevant working parties of the
EU for discussion and for thedevelopment of further legal and(vi)

It would also be appropriate tomention in this context that the EU
Council in 1997 adopted theConvention on mutual assistanceand co-operation between customs
authorities (Naples II). This
Convention contains provisions on
the relationship with mutual

39

RESOURCE MATERIAL SERIES No. 57
assistance provided by judicial
authorities. The principle involved
is that where a criminal
investigation within the area
covered by the Convention is carriedout by or under the direction of a
judicial authority, that authority
decides whether requests for mutual
assistance should be made under
the Convention or underarrangements for mutual assistancein criminal matters. The provisionsof the Convention on controlled
deliveries, joint investigation teams
and covert investigations have, to awide degree, served as a basis fordrafting similar provisions in thedraft EU Convention on mutual
assistance.
(vii)

A further EU instrument which isparticularly relevant in relation tomutual legal assistance is the Joint
Action adopted in April 1996
establishing a framework for theexchange of liaison magistrates toimprove judicial co-operation within
the Union. The main objective increating that framework was toincrease the speed and effectivenessof judicial co-operation. Liaison
magistrates currently operate in
F r a n c e , G e r m a n y, I t a l y, t h eNetherlands and Spain.

C. Current Work on Legally Binding
Instruments on Mutual
Assistance in Criminal Matterswithin the European Union andelsewhere
The EU Council Working Party on cooperation in criminal matters has, for sometime, worked on the elaboration of aConvention on mutual assistance incriminal matters between the Member
States of the European Union. The draft(to a large extent in the way alreadyagreed) has recently been published in the40

Official Journal of the European
Communities and submitted to theEuropean Parliament for consultation.
The main objective of the Convention isto supplement what already exists. Thatmeans, in particular, the 1 959 Convention,
the Benelux Treaty, and the 1990 Schengen
Convention. That all sounds very simple.
But it is not. The integration of the
Schengen acquis into the EU implies inparticular the following: All provisions of
the draft Convention related to the
Schengen acquis must be examined with
Norway and Iceland (which was part of
Schengen but are not Member States of theEU) before adoption of the instrument. In
addition, the Schengen acquis does not for
the time being apply to the United
Kingdom and Ireland (which are Member
States of the EU). These elements havegiven rise to complicated procedural
discussions in Brussels.
The draft EU Convention contains inparticular the following provisions :(i) Further Development of Schengen:
Article 2: Mutual assistance shall beafforded in administrative proceedings
which may give rise to proceedings before
a court having jurisdiction, in particular,
in criminal matters, in cases involving
natural as well as legal persons.
Article 5: Procedural documents to besent from one Member State to anothershall be sent by post. There are certain
limited exceptions to that obligation.
Article 6: Requests for mutual assistanceshall be made directly between the judicial
authorities concerned. However, it ispossible in specific cases to make use ofcentral authorities. Also, a Member State
may declare that requests addressed to it
should be sent to its central authority. Only

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the UK and Ireland will make use of thisoption, which for these countries simply
will mean the maintenance of the statusquo (one could, however, question if thisprovision is fully compatible with the
Schengen convention) .
Article 7: Spontaneous exchange of
information.
Article 12: Controlled deliveries.
(ii) Non-Schengen
Article 4: The requested Member State
shall comply with procedures indicated ina request unless doing so would be contrary
to its fundamental principles of law. Thisis a new development in international
mutual legal assistance practice and willconsiderably render mutual legal
assistance more efficient as it lays down
the principle of “Forum Regit Actum”.
Deadlines for execution set by therequesting State shall be respected to the
maximum extent possible (see also thepreviously mentioned Joint Action).
Article 8: This Article is optional andprovides that Member States may placearticles obtained by criminal means at thedisposal of another Member State with aview to their return to their rightful owner.
It specifically provides that where, onrequest, property has been handed over toanother Member State for the purpose of
criminal proceedings under the 1959
Convention or the Benelux Treaty, theMember State supplying the property may
waive the right to have it back for the
purpose of its restitution to its rightful
owner.
Article 9: The 1959 Convention isconcerned with cases where the requesting
State wants a person in custody transferred
to it from another State. Article 9 deals
with the situation where the requesting

Member State wants to transfer a person
in custody to the requested Member Statefor the purpose of criminal proceedings.
Article 10: This Article concerns thehearing of evidence by video conference andis one of the major achievements in thecontext of the convention. It provides thata Member State must comply with arequest for hearing experts or witnesses byvideo conference unless it would be against
its fundamental principles of law or it does
not have the relevant technical facilities.
The provision may, by mutual agreement,
also be used for hearings involving accused
persons.
Article 11: This Article is optional andconcerns hearing witnesses and experts bytelephone conference.
Articles 12, 13 and 14: The provisions
on controlled deliveries, joint investigation
teams and covert investigations have, tosome extent, been based on provisions of
the Naples II Convention. The articles arein particular of relevance in relation to thefight against organized crime and illustrate
how the gap between traditional judicial
co-operation and police co-operation isabout to lessen.
Articles 15 to 20: Interception of
telecommunications. This part of theConvention is considered to be very
important by all Member States. The
advantages of having clear legal provisions
on co-operation in this very sensitive area
are obvious. But more importantly, newtechnology; such as satellite
telecommunications, has created newopportunities for organized crime to avoid
interception and at the same time newchallenges for law enforcement.
Negotiations in respect of these provisions
are still on-going.
It is possible that the draft Convention

41

RESOURCE MATERIAL SERIES No. 57
also will contain some provisions relating
to the protection of personal data. The EU
Council took a decision recently to aim atdrafting some provisions in that respect.
Discussions are on-going.
D. Other Work of Relevance to
Mutual Assistance within theEuropean Union
Work is also going on in relation tomutual assistance in other fora. In theCouncil of Europe a draft Second
Additional Protocol to the 1959 Convention
is currently under discussion. That draftcontains many provisions corresponding tothose of the draft EU Convention and thedraft EU Convention has of course to agreat extent inspired the drafting of theCouncil of Europe Second additional
Protocol. It will however have to beremembered that reservations possibly
may be made to the Council of Europe
Protocol whereas reservation possibilities
in the EU Convention will be extremely
limited.
Another important draft international
instrument containing mutual assistanceprovisions is the proposed UN Convention
on transnational organized crime. It is to
be expected that this Convention will be
adopted by the end of the year, if
negotiations are carried out as planned.
E. Final Remarks on Mutual
Assistance
There is a considerable amount ofactivity in Europe for the purpose of
improving mutual assistance in criminal
matters. This applies both in respect of
the need for appropriate legal provisions
as a basis for co-operation and as regards
the need to ensure efficient use of therelevant instruments at the practical level.
One of the difficulties that has been
experienced in Europe is that theborderline between what is regarded as
mutual assistance in criminal matters and42

what is considered to belong elsewhere, be
it police co-operation or customs cooperation, can be different from one
Member State to another. This may makeit difficult to agree on where in the systema particular issue should be dealt with (e.g.
joint investigation teams). However, thatis a problem that we simply have to livewith and tackle as best as we can.
Another challenge is how to ensure thatthe situation in so far as the legal
provisions are concerned is sufficiently
clear and easy to access for practitioners.
A practitioner will in a specific case needto know.
(i) what are the legal provisions governing
mutual assistance in the caseconcerned, and(ii) to whom does he have to address
himself to get the assistance?
Of course, the proliferation of
instruments, the possible conflict between
instruments adopted in different fora andthe variable geometry regarding theterritorial application of the different
instruments may sometimes make life alittle difficult for practitioners. However,
it is clear that significant progress has
been, and continues to be, made in thedevelopment and operation of mutual legal
assistance and it is undoubtedly an area
where further improvements will takeplace in the future.
III. EXTRADITION
A. Basis for Extradition within theEuropean Union
As with the mutual assistance incriminal matters, the single mostimportant instrument for extradition
within the European Union in this context
is the Council of Europe Convention of 1957
on extradition, as supplemented andmodified by the additional protocol of 1975

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
and the Second additional Protocol of 1978.
At the time when the European Convention
was adopted it was also considered to be avery innovative instrument, and it has
been reported that it replaced some 200
bilateral Treaties at the time. All
extraditions within the European Union
are in principle based on the Convention
which is a major achievement of theCouncil of Europe.
It should be recalled that the Convention
has been ratified by all Member States of
the European Union and is thus, in thesame manner as the MLA-Convention,
considered to be an inseparable part of theacquis of the Union. In fact, it is consideredthat the applicant States of Central- andEastern Europe seeking membership of theEuropean Union cannot become membersof the Union unless they have ratified thesetwo Conventions of the Council of Europe.
The Convention lays down an obligation
for the Contracting Parties to surrender toeach other, subject to certain conditions,persons against whom proceedings arecommenced or who are wanted for the
carrying out of sentences or detention
orders. Extraditable offences are thosewhich carry prison sentences in both Statesof at least one year or where thepunishment awarded is at least 4 months
imprisonment. The Convention thus
avoids the so-called list method by which
specific offences are enumerated.
The condition of double criminality mustbe fulfilled, although it can be argued that,on the side of the requested State, double
criminality in abstracto may be sufficient.
The Convention makes a number of
exceptions to the general obligation to
extradite. Although some of these
exceptions are in the form of a facultative
possibility of refusing extradition, it is clearthat some of them restrict the applicabilityof the Convention. It will later be shownhow the European Union has sought tolimit the exceptions between the Member
States of the EU.
Extradition may be excluded by reasonof the nature of the offence, for procedural
reasons or for reasons relating to theperson.
The exceptions concern (i) politicaloffences, (ii) offences for which therequested State has “substantial grounds
for believing” that the request was madefor prosecution or punishment on accountof race, religion, nationality or politicalopinion, (iii) military offences, (iv) fiscal
offences, (v) own nationals (coupled withthe principle of aut dedere, aut judicare),(vi) the place of commission of the crime,(vii) pending proceedings for the sameoffences, (viii) non bis in idem, (ix) lapse oftime, and (x) capital punishment.
The Convention provided initially, inprinciple, for the forwarding of requests
through diplomatic channels, although it
allowed for exceptions to this rule. But inpractice nowadays, because of article 5 of
the Second additional Protocol to theConvention, within the European Union
requests are in principle directly forwarded
between Ministries of Justice.
The Protocols to the Convention amends
the Convention in respect of certain
offences such as crimes against humanity,
certain fiscal offences, judgements inabsentia and offences for which amnesty
has been given.
B. Achievements of the European
Union
The practitioner knows that extradition
procedures are extremely slow andcumbersome. Also in cases whereextradition is consented to by the personsought, extradition may take up to one year

43

RESOURCE MATERIAL SERIES No. 57
because of internal procedures in therequested State.
This state of affairs cannot be consideredsatisfactory. Justice delayed is justicedenied and in particular in the interest of
the victim it is of importance not to delay
extradition unnecessarily where thesuspect consents to his extradition.
It was in recognition to these types ofconsiderations that the European Union
decided to supplement the 1957
Convention by the drafting of two
Conventions; one dealing with simplified
extradition and the other of a more generalkind. It may be noted that according tosome estimations made by extradition
experts, within the European Union
extradition requests are consented to in
about 30 % of the cases and that the
average time for extradition in such cases
has been some 8 months for extradition.
The Convention on simplified
extradition, adopted in 1995 and ratified
to date by 6 Member States (moreratifications soon to follow), provides thatthe person sought may be returned without
a formal court hearing, subject to thefinding by a judicial authority that theconsent has been expressed voluntarily andin full understanding of the legal
consequences thereof.
The Convention has also addressed thequestion whether consent to extradition
and waiver of a court hearing implies awaiver of the protection by the speciality
principle. Since no agreement could bereached on this issue during the draftingof the Convention, the States which wantto preserve the right to submit theextradition to the guarantee that the
speciality principle shall be respected cando this through a declaration made at thetime of ratification of the Convention. In
principle, however, consent to be extradited

44

implies consent to the possibility to beprosecuted also on other charges than thosecontained in the extradition request, or in
the request for provisional arrest.
The second Convention, adopted in 1996
and currently ratified by 6 Member States(also here more ratifications will soon
follow) addresses a number of the
exceptions to extradition provided for in the1957 Convention and seeks to lift a numberof taboos in relations between the Member
States of the European Union. It has been
considered that between the Member
States, which seek to create an area of
freedom, security and justice by the entry
into force of the Treaty of Amsterdam,
traditional obstacles to extradition should
be reduced as much as possible.
It has therefore been provided in theConvention as general principles thatextradition should not be refused inrelation to certain of the exceptions
mentioned above under the 1957
Convention. These concern:(i) political offences,(ii) fiscal offences,(iii)the requirement of double criminality
for certain organized crime offences,(iv) extradition of own nationals,(v) speciality principle, and(vi) time limitations.
During the negotiations on thisConvention, it was not possible to reach fullconsensus even within such a closely
integrated area as the European Union.
Some of these issues, such as the nonextradition of own nationals, are dealt within the constitutions of the Member States,
and for that reason reservations have been
made possible but with the clearly
expressed intention that these reservations
be lifted in due time. In particular in
relation to the non-extradition of own
nationals, this is clear as a specific system

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSof temporary reservations has been set up
which must be extended from time to time,
if they are not to lapse automatically.
The Convention states as a general rulethat the political offence exception shall not
apply between the Member States. It is,however, possible to enter a reservation tothis provision, but not with respect tooffences which are covered by the Councilof Europe Convention on the suppressionof terrorism from 1977. These include not
only offences defined in a number of UN
Conventions (on high-jacking, the safety ofcivil aviation and the taking of hostages)
but more generally serious offences ofviolence affecting the life, physical integrityor health of persons.
Similarly, the Convention provides as a
general rule that the fiscal offence
exception shall not apply between Member
States of the EU. Again, it is possible toenter a reservation, but not in respect ofoffences concerning customs duties,
turnover tax and other indirect taxes. It is
unlikely that more than one Member State
will make a reservation in this context.
On double criminality in relation tocertain serious offences, a new avenue has
been explored. In principle therequirement has been retained, even if theexisting thresholds of punishability havebeen lowered; it suffices that the offence
carries as a maximum one year
imprisonment in the requesting State andonly six months in the requested State.
However, with a view to be able to bettercounter various forms of organized crime,and more particularly the various forms ofparticipation in the activities of organizedgroups as they have been criminalized in
the Member States, the Convention
provides that with respect to these formsof participation a strict requirement of
double criminality shall not apply. This isirrespective of whether the offence has been
defined a conspiracy or an association ofwrongdoers, or as an affiliation to mafiatype organisations or as membership of
criminal organisations or as acts ofparticipation in offences committed or tobe committed by others.
Reservations are also in this caseallowed for, but only if the Member Statein question have criminal legislation inplace criminalizing forms of participationor preparatory acts as defined in theConvention with respect to a wide range ofserious offences, in particular those which
are commonly committed by way of crossborder organized crime. This provision
should reduce problems of double
criminality to a minimum.
This solution to extradition in relation
to certain serious crimes took quite sometime to develop but may be seen as aninteresting development in the field ofextradition law. It is a way of reconcilingthe necessity of co-operation in relation inparticular to serious crime with a drive
towards greater harmonisation of thecriminal laws of the Member States;
something which was also debated in themeeting of the Heads of State andGovermment at Tampere referred to below.
The non-extradition of own nationals iscommonly recognized as a principle ofextradition law by States belonging to thecivil law tradition whereas countries
belonging to the common law tradition
often extradite their own nationals.
Coupled with these differences is the policy
relating to the establishment of
extraterritorial criminal jurisdiction overoffences committed by nationals wherecommon law countries usually take a more
restrictive approach.
In view of the constitutional obstacles
in some Member States such as Germany,

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RESOURCE MATERIAL SERIES No. 57
it was felt necessary during the drafting of
the Convention to allow for a system of
temporary reservations to be able to besubmitted. The temporary reservations
will have to be prolonged and if they are
not they will lapse. Through the creationof this system, it became clear that thepolitical will of the Member States is tomake no distinctions, within the Union,
between citizens of the Union somethingwhich can be seen as a rupture withconcepts which have been taken for granted
for centuries.
On the speciality principle theConvention has in the first place clarified
which actions by the requesting Member
State are not considered as falling under
the actions which can only be performed
subject to the consent of the requested
State. In the second place the Convention
has given the right to the person concerned
to waive his claims to protection under the
speciality principle, irrespective of theviews held on this by the requested State.
On time limitations, finally, theConvention provides as a rule thatprovisions on time limitations in the lawof the requested State should in principle
be ignored, unless that State has, according
to its laws, also jurisdiction over the offence
for which extradition is requested.
C. Schengen Developments
The Schengen Convention of 1990
contains also provisions on extradition,some of which have been taken over in thepreviously mentioned two EU Conventions.
These provisions relate, for instance, toamnesty, time limitation, certain simplified
extradition, certain fiscal offences andchannels for sending requests. One
important consequence of the adoption of
the Schengen regime is that an “alert”
entered into the Schengen Information
System, a computerized system which isavailable in all 13 Schengen Member

46

States, has the automatic effect of a request
for provisional arrest under article 16 of
the European Convention on Extradition.
This means in practice that if a bordercontrol officer finds out, when he controls
a person in the SIS computers that an“alert” has been introduced in the system,he shall immediately arrest the person or
ensure that the competent police
authorities proceed to his arrest. It was insuch a way that the Italian authorities
arrested Mr Öçalan, the Kurdish leader forwhom Germany had entered an “alert” on
the basis of arrest warrants made byGerman judicial authorities. It is anothermatter that the German authorities
thereafter did not proceed to a formal
extradition request.
D. Current Work on Legally Binding
Instruments on Extradition
within the European Union
There is at present no work relating to
extradition ongoing within the European
Union. However, the Treaty of Amsterdam
specifies expressly that work should bestarted to further facilitate extradition andthe conclusions of Tampere also indicatethat more work should be undertaken.
Therefore, it is to be expected that new
avenues will continue to be explored.
Moreover it is possible that within theframework of the system set up for mutual
evaluation of international undertakings,
a new topic on extradition might be selected
within the next 1-2 years. This would seemto be a logical consequence of theevaluations which have been carried out
on mutual assistance in criminal mattersand urgent requests for seizure of assets
referred to above.
E. Final Remarks on Extradition
Extradition is still seen as a matter
which is very close to the sovereignty of theMember States. However, it is clear thatwithin the European Union there is a drive
towards simplifying and speeding up

114TH INTERNATIONAL TRAINING COURSE
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extradition, although we are probably still
far away from the creation of an area of
extradition law where the formalised
extradition procedures are replaced by asimple system of return of fugitive
offenders, based on simple mutual
recognition and enforcement of arrest
warrants, with only very limited cases left
in which refusals to co-operate in this fieldwould be justified.

This special meeting of the European
Council was held at Tampere (Finland)
under the Chairmanship of the Finnish
Prime Minister who then held thePresidency of the Council. It debated threemain themes: A common EU Asylum andMigration Policy, A Genuine European Areaof Justice and A Unionwide Fight Against
Crime and adopted the so-called 10“Tampere Milestones”.

Every time when calls have been madefor more simple and rapid procedures,
human rights lawyers have protested andclaimed that the rights under the Geneva
Convention would be violated if a simple
system of rendition would be adopted andthat not even within the European Union
one can forego court procedures in spite of
the fact that all Member States havesubscribed to the European Convention on
Human Rights and should have procedural
legislation which is in conformity with thatconvention. The debate on this issue is by
no means closed and will continue inparticular in the light of the results of theTampere Summit referred to below.

These milestones contain specificdecisions which are relevant to MLA andto extradition. Paragraphs 33, 35 and 36
of the conclusions provide:

IV. THE EUROPEAN COUNCIL AT
TAMPEREThe entry into force of the Treaty of
Amsterdam on 1 May 1999 has by many
been seen as a qualitative leap for theEuropean Union in the area of Justice andHome Affairs. For the first time, theobjective of creation of “An area ofFreedom, Security and Justice” was spelled
out in the Treaty and specific actions to thatend were provided for in the Treaty which
is a kind of Constitution for the European
Union. It was therefore not surprising that
the European Council, consisting of the
Heads of State and Government of all
Member States decided to convene, only forthe second time in the history of the EU, aspecial meeting to discuss the realisationof the new objectives.

“Enhanced mutual recognition of
judicial decisions and judgements and thenecessary Approximation of legislation
would facilitate co-operation between
authorities and the judicial protection ofindividual rights. The European Council
therefore endorses the principle of mutual
recognition which, in its view, should
become the cornerstone of judicial cooperation in both civil and criminal matters
between the Union. The principle should
apply both to judgements and to otherdecisions of judicial authorities.... It
considers that the formal extradition
procedure should be abolished among theMember States as far as persons areconcerned who are fleeing from justice after
having been finally sentenced, and replaced
by a simple transfer of such persons...
Consideration should also be given to fast
track extradition procedures, without
prejudice to the principle of fair trial.... The
principle of mutual recognition should also
apply to pre-trial orders, in particular to
those which would enable competentauthorities quickly to secure evidence andto seize assets which are easily movable....”In the background to these decisions wasa proposal in particular by the United
Kingdom to intensify work on mutual
recognition in relation to MLA and to47

RESOURCE MATERIAL SERIES No. 57
extradition. As a result of the Tampere
decision, it is probable that we will see adevelopment whereby it is explored if
extradition could be made more automatic,
at least where a person has been finallyconvicted of an offence and then seeks toevade the consequences of his conviction.
Work will also begin on the very difficult
issue of freezing of assets in anothercountry where there is a risk that the asset
may be transferred out of the jurisdiction(for instance funds on bank accounts which
may be quickly dissipated). It is probablethat such work needs to be coupled with
the question of certain minimum standards
which must be adhered to and thus beextremely sensitive and difficult.
The discussion on the principle of mutual
recognition should also be seen in
conjunction with another decision of theEuropean Council, namely the setting up
of a unit called EUROJUST, composed ofnational prosecutors, magistrates, or police
officers of equivalent competence, detachedfrom each Member State according to its
legal system. This unit would have the taskof facilitating the proper co-ordination ofnational prosecuting authorities and of
supporting criminal investigations inorganized crime cases. A legal instrumenton the setting up of this unit will have tobe adopted before the end of 2001. One of
the ideas which will be discussed in thecontext of EUROJUST is whether thesenational magistrates, which will probably
be detached to The Hague as Europol also
has its seat there, will be able to takeprovisional measures and freeze for
instance bank accounts in their own
countries in accordance with their national
legislation.
V. CONCLUDING REMARKSAs will be understood from this brief
exposé, which by necessity must be madein a cursory manner, the legal situation

48

concerning both mutual assistance incriminal matters and extradition within
the European Union is extremely complex.
It has in fact become so complex so that
also specialists have difficulties in fully
understanding the law and grasping all thedetails. The practitioner will have to know
a number of multilateral treaties (Councilof Europe, EU, UN, Schengen, Benelux...),
various Joint Actions of the EU and alsointernal legislation, guidelines,
instructions and directives in order to beable to use efficiently all possibilities.
Moreover, since the tendency, inparticular in mutual assistance, is to havemore and more direct contacts between
judicial authorities, it is clear that for
instance a prosecutor who only deals witha few letters rogatory per year will havedifficulties in carrying out his tasks
efficiently. This has in turn led to measuresin some countries whereby specifictraining, in particular in languages, hasbeen given to certain prosecutors andclustering of prosecutors made so that only
those specialised in mutual assistanceactually send and receive requests.
Computerised systems are also under way,whereby police and prosecutors are
assisted in the drafting of mutual
assistance requests, so that nothing isforgotten in the processing of the request
and all translations of necessary legislation
can be provided immediately by the system.
An example of such a system is the socalled KRIS system developed in the
Netherlands. At the same time, efforts
undertaken by the European Union not
only to set standards for norms but also
actually to deal in practice with judicial cooperation are bearing fruit (setting up of
the European Judicial Network, providing
access to telecommunications, productionof CD-Roms and creation of websites,
standards of good practice, mutual
evaluations...).

114TH INTERNATIONAL TRAINING COURSE
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Although one can be reasonably
optimistic about the future and about thefact that much finally is being done to bringjudicial co-operation at least up to the same
standards as police co-operation, one canstill question whether the measures which
are being taken are enough to ensure an
efficient fight in particular againstorganized crime which has extremely
powerful resources at its disposal. In any
case, efforts at multilateral level, be it theEuropean Union, Council of Europe or UN,
are encouraging and should be intensified.

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RESOURCE MATERIAL SERIES No. 57

EXTRADITION AND LEGAL ASSISTANCE: THE PHILIPPINEEXPERIENCE
Severino H. Gaña, Jr.*,**
I. INTRODUCTION
Before embarking on a discussion ofsubstantive extradition law issues andprocedures in the Philippines, I would liketo describe briefly the International Affairs
Division (IAD) of the Philippine
Department of Justice. The Division iscomposed of State Prosecutors and State
Counsels. The Division is responsible forinternational extradition submitted by
local authorities and is the principal officehandling all requests for extradition ofindividuals who have fled to thePhilippines. The IAD is also the central
office in charge of all matters relating tomutual legal assistance in criminal
matters. In addition, within the IAD wehave the Refugee Processing Unit (RPU)
which implements our obligations
pursuant to the 1951 Refugee Convention
and its 1967 Protocol. A fourth function of
IAD is to assist in handling requests fortransfer of sentenced persons/prisoners,
although at the moment the Philippines
has only two treaties - one with Hong Kongand another with Thailand - but neither
have been ratified to date. Finally, the IAD
also participates in treaty negotiations.
At present the Philippines has
extradition treaties with Australia,
Canada, the Federated States ofMicronesia, Hong Kong, Indonesia,
Republic of Korea, Switzerland, the UnitedStates of America, and the Kingdom ofThailand, and treaties on mutual legal* Senior State Prosecutor, Department of Justice,
Philippines.
**International Director, Asia Crime Prevention
Foundation

50

assistance on criminal matters with
Australia and the United States ofAmerica.
As already mentioned, the Philippines
has two treaties on Transfer of Sentenced
Persons, one with Hong Kong and another
Thailand, but both are still pending in the
Senate.
The IAD is not a big office. All in all
there are about fifteen (15) of us. We are
directly under an Undersecretary ofJustice. So far this small group is sufficientconsidering the low number of cases being
handled.
The year 1999 was a challenging year
for the IAD. The year saw most of thelawyers of the IAD battling cases from theRegional Trial Court, Court of Appeals andthe Supreme Court. Foremost among thesecases was the United States appeal for the
extradition of Mark Jimenez, a presidential
adviser. This case put extradition in thelimelight and awareness to its importance
was focused as it saw publicity in theheadlines.
With this brief introduction about the
IAD, I would now like to begin a discussion
about the extradition experience in thePhilippines. I will not discuss the legal
principles applicable to extradition, except
maybe in passing, since numerous
materials abound in this area. Instead, mydiscussion will be limited to sharing ourpractical experiences in extradition andcooperation and some of the problems
facing us. My discussion will be divided
into two, namely, our experience in thosecases where we have treaties, which I

114TH INTERNATIONAL TRAINING COURSE
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would label as “formal extradition
procedures”, and those where we do nothave any formal treaties, which I call,“informal cooperation”.
II. FORMAL EXTRADITIONPROCEDURES
A. The Philippine Extradition Law
In the Philippines extradition isgoverned by Presidential Decree No. 1069,“The Philippine Extradition Law”, and by
the applicable extradition treaty in force.
PD No. 1069 was enacted by then President
Ferdinand Marcos in 1977, shortly after thePhilippines concluded its first extradition
treaty with the Republic of Indonesia. As
can be seen the law is more than twenty(20) years old, and has not been amended
since. PD No. 1069 is intended to “guidethe executive department and the courtsin the proper implementation of theextradition treaties to which thePhilippines is a signatory”. Under the law
extradition is defined as :“The removal of an accused from thePhilippines with the object of placing
him at the disposal of foreignauthorities to enable the requestingstate or government to hold him in
connection with any criminal
investigation directed against him or
the execution of a penalty imposed on
him under the penal or criminal lawof the requesting state or
government.”
The definition approximates theinternational definition of extradition
which is:... the process by which persons
charged with or convicted of crime
against the law of a State and foundin a foreign State are returned by thelatter to the former for trial or
punishment. It applies to those whoare merely charged with an offense

but have not been brought to trial; tothose who have been tried andconvicted and have subsequently
escaped from custody; and to those
who have been convicted in absentia.”
Philippine law provides that the
Secretary of Foreign Affairs has the firstopportunity to make a determination onwhether the request complies with therequirements of the law and the relevant
treaty, such as the submission of theoriginal or authenticated copy of thedecision or sentence imposed upon an
accused; or the criminal charge and thewarrant of arrest; a recital of the acts forwhich extradition is requested containing
the name and identity of the accused; hiswhereabouts in the Philippines; the acts
or omissions complained of; the time andplace of the commission of those acts; thetext of the applicable law or a statement of
the contents; and such other documents orinformation in support thereof. Once allof these are complied with, the request andsupporting documents are forwarded to theSecretary of Justice who shall thendesignate a panel of attorneys from the IAD
to handle the case.
In practice, the role of the Departmentof Justice (DOJ) is not limited to filing andhandling the case in court. If it deems
necessary, the DOJ may also request theforeign state to submit additional
supporting documents particular toPhilippine procedures. This is done to
make sure that only those requests thatcomply with both treaty and domestic
requirements are processed. For example,
we usually request for certified copies of
the affidavit of witnesses and do not merely
rely on the affidavit of the prosecuting
attorney which merely synthesizes thestatements of the witnesses. Relying solely
on the affidavit of the prosecuting attorney
may be dangerous because it would beconsidered already a double hearsay under

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RESOURCE MATERIAL SERIES No. 57
Philippine laws.
Once all the supporting documents are
in order, the State Counsel will prepare theextradition petition which is then filed witha Regional Trial Court. The judge may thenissue a warrant of arrest if in the court’s
opinion the immediate arrest andtemporary detention of the accused will
best serve the ends of justice. It has been
the practice of the IAD to request for thearrest of an accused upon the filing of an
extradition petition/application.
Under Section 20, provisional arrest canbe granted but the period of detention is
only twenty (20) days. The law also
contains a provision for the appointmentof a counsel de oficio if on the date set for
the hearing the accused does not have alegal counsel.
In addition to PD No. 1069, thePhilippine Rules of Court, although not alaw, apply in extradition cases but only
insofar as practicable and when notinconsistent with the summary nature of
the proceedings.
On the issue of the degree of evidence
required, under PD No. 1069, what thepetitioner must establish is a prima faciecase. The standard generally used intreaties is probable cause. An issue arises
on which standard is higher. Under
Philippine jurisdiction there is somedistinction between the two but it is a thinline that is often blurred. It would appear
however, that probable cause is a higher
standard.
Decisions of the Regional Trial Courts
are appealable to the Court of Appeals, andmay also be raised by certiorari to theSupreme Court.

52

B. Crimes Covered by Treaty
For crimes covered by treaty, thePhilippines adopts both the listing
approach - where specific crimes are
enumerated, and the dual criminality, or
what I would call the conduct approach,where what is important is the underlying
conduct of an accused.
To satisfy dual criminality, the name bywhich the crime is described in the twocountries need not be the same, nor should
the scope of liability for the crimes besimilar. As to the period when dual
criminality must exist, it may be worth
noting that in the recent case of Regina vs.
Bartle and the Commissioner of Police,
more commonly known as the Pinochet
extradition appeal case, the House of Lords
opined that dual criminality must exist at
the time of the commission of the act andnot at the time of the request.
The listing approach is adopted in theextradition treaties with Hong Kong,
Indonesia, and Thailand. While thosetreaties with Australia, Canada, theRepublic of Korea, Micronesia,
Switzerland, and the United States ofAmerica adopt the dual criminality
approach.
C. Jurisprudence on Extradition
To my mind, there is only one (1) casedecided by the Philippine Supreme Court
regarding extradition. This is the case of
Wright vs. Court of Appeals. This caseinvolved the extradition of an Australian,
Mr. Paul Wright, back to Australia to facecharges of obtaining property by deception.
The case is significant because ourSupreme Court, in upholding theconclusion of the Honorable Court ofAppeals, held that the RP-Australia
Extradition Treaty is neither a piece ofcriminal legislation nor a criminal
procedure. The Honorable Supreme Court
stated that extradition “merely provides for114TH INTERNATIONAL TRAINING COURSE
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the extradition of persons wanted forprosecution of an offense or a crime ...” Thedecision states in categorical terms thatextradition is not a criminal procedure in
the Philippines. Consequently, all the strict
safeguard measures attendant in acriminal case are not readily applicable inextradition.
It is accurate to state that extradition is
not a criminal procedure. The purpose ofan extradition hearing is not to determine
the guilt of the accused - that is the role ofthe court where the primary case ispending - but merely to determine whether
there is probable cause to believe that theaccused committed the offenses charged in
the requesting country. As such, theextradition court is not the venue to raise
defenses against the offense/s charged.

• Requesting State: Australia 3 (3extradited)• Requesting State: Hong Kong 1(detained)
CHART 1

• Requested State: USA, 12• Requested State: Canada, 2• Requested State; Indonesia, 1
CHART 2The case also made it clear that theprovisions of an extradition treaty whichmake it applicable to offenses committed
prior to its entry into force are not in thenature of an ex post facto law.
Finally, the decision holds that thephrase “wanted for prosecution” which isused in the treaties does not mean that
there is a criminal case pending against
the accused in the requesting State. Thisrequirement is complied with as long as
there is a warrant for the arrest of theaccused. In that instance the person canbe said to be “wanted for prosecution”.
Holding otherwise, it would be very easy
for an accused to render an extradition
treaty ineffective by the mere fact of
absconding before a case is actually filed.
D. Breakdown of Extradition
Requests
The breakdown of the extradition
requests is as follows:• Requesting State: USA, 10 (4detained, 1 extradited)

The data show that the Philippines
receives most requests from the UnitedStates. Correspondingly, the Philippines
sends most of its requests to the UnitedStates. This may be due in part to the large
number of Filipinos who reside in the
United States. It can also be seen that outof a total of 14 foreign requests, thePhilippines already extradited the subjects
in four (4) of these cases. That would
translate to 29% extradition rate. All theother cases are still pending.
For requests made pursuant to treaties
on mutual legal assistance, the breakdown
is as follows :• Requesting State: USA, 4• Requesting State: Australia 2

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E. Current Major Issues
EncounteredGenerally, most of the objections raised
against extradition are constitutional ones.
This is understandable considering theinfancy of the proceedings in thePhilippines. Grounds for arguing thatextradition/extradition treaties areunconstitutional are the following:
1. It violates human rights
2. It is ex post facto
3. It is a denial of due process
4. It does not supersede domestic law
and that it in effect allows
extraterritorial application of foreignlaws.
In ordinary cases these issues could
easily be resolved. However, as this isconnected with a novel matter, there issome difficulty in resolving theconstitutional issues because of the dearthof jurisprudence on the subject.
Additionally, extradition and mutual legal
assistance are topics that are generally new
to both bench and bar. We therefore, often
rely on US jurisprudence, which have beenof great assistance to us. Hopefully, we willsoon have our own jurisprudence on thematter.
Some of the specific issues weencountered are the following:a. Provisional Arrest
When an alleged fugitive has been
located in a foreign country it is often
important to effect his arrest at once toprevent his further flight. For this purpose,most extradition laws and treaties providethat the alleged fugitive may be arrested
and temporarily detained for a period oftime to enable the requesting State tofurnish the necessary documentation in
support of its request for his extradition.
It is therefore, standard for extradition
treaties to contain a provision on
provisional arrest. Considering the time

54

factor, our implementing law, PD No. 1069
allows a request for provisional arrest to
be sent either through diplomatic channels
or by post or telegraph. Through practicethis has evolved to include requests sent
through fax. This is not without problems.
In a couple of cases, the accused hasquestioned the validity of requests that aresent through fax arguing that there is no
guarantee that fax copies are certified
copies of the original. Basically, theargument hinges on the issue ofauthentication and certification. It is the
position of the IAD that if the law allows
telegraph, which are often brief statements
then with more reason should fax copies,
which are reproductions of the original, be
allowed.
Also under PD No. 1069, the period for
detention under a provisional arrest
pending the receipt of the extradition
request is twenty (20) days. The treaties
however, provide generally from 45 to 60
days detention. There is a case now
pending before our Supreme Court on theissue of whether later treaties are deemed
to have amended the period so provided
under the domestic statute. It is the
position of the IAD that, where there is a
conflict, a later treaty prevails over an
earlier enacted statute. This is so because
under Philippine jurisprudence, a treaty
once ratified is on equal footing with adomestic law.
b. Issue of BailAn issue that arises once an accused has
been provisionally arrested is the questionof bail. Individual’s interest in pre-hearing
liberty has been recognized under the
principle of due process and consequently,
have been denied only in limitedc i r c u m s t a n c e s . M o r e o v e r, i n t h ePhilippines, the right to bail is enshrinedin our constitution.

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It has been commented that inextradition cases, the individual interestin pre-hearing liberty is arguably evenstronger than in domestic cases, because
in addition to the imprisonment, there isalso present the transportation of theindividual to another jurisdiction. Despite
this interest, most extradition treaties are
silent on the provision of bail. In the
Harvard Research in International Law,
Draft Convention on Extradition, the issueof the right to bail was deliberately left out.
At that time it seemed best to “leave to themunicipal law of each State to determine
whether enlargement upon bail is a safemeans of detention under any
circumstances, and, if so, the circumstances
which shall justify such action.”In the cases pending now in various
courts in the Philippines, the IAD puts
forward the argument that theConstitutional Right to Bail is not an
absolute right. This argument hinges on
the principle that as a general rule theconstitutional right to bail is available only
in criminal proceedings committed against
the state. This is supported by the text of
Section 13, Article 3 , of the 1987
Constitution which states that:All persons, except those charged
with offenses punishable by reclusion
perpetua when evidence of guilt isstrong, shall, before conviction, bebailable by sufficient sureties, or bereleased on recognizance as may beprovided by law. The right to bailshall not be impaired even when theprivilege of the writ of Habeas Corpus
is suspended. Excessive bail shall not
be required. (underscoring supplied)
Since, extradition is not a criminal
proceeding, bail as a matter of right does
not exist, if at best, it may exist only as amatter of discretion. Or to put indifferently, in extradition proceedings,

there is a presumption against bail.
The absence of a right to bail does notmean that the accused would be left
unprotected. It has been noted that inthose situations where the right to bail does
not exist, emphasis has been given to theright to speedy trial. It would appear that
this counterbalancing of rights would
reduce whatever harshness may exist by
the absence of a right to bail. It is notablethat both in the Philippine Extradition Law
and the extradition treaties entered intoby the Philippines there are no provisions
on bail. What the Philippine Extradition
Law provides is that the extradition
proceedings are summary in nature.
However, as lawyers, we always have analternative argument. Assuming that the
courts have the authority to grant bail inextradition proceedings even in the absenceof specific provision in PD 1069 and the
RP-US Extradition Treaty, this power must
be exercised only for the most special of
circumstances.
In Philippine
jurisprudence there are examples of special
circumstances; that is: to prolong detention
under a protracted trial with no indicationof early termination; or health reasonsnecessitating special hospitalization.
We are also arguing that if bail exists asa matter of discretion, the showing of areasonable risk of flight is sufficient groundfor denying bail. In the Philippine setting,this argument is novel since the practiceis that the risk of flight is not a ground for
denial, the remedy being to merely increase
the amount of bail. The reason for thepresumption against bail in extradition
proceedings is one that carriesinternational repercussions for therequested state. As enunciated in the caseof Wright vs. Henkel:
the demanding government, when it
has done all that the treaty and the55

RESOURCE MATERIAL SERIES No. 57
law require it to do, is entitled to thedelivery of the accused on the issue ofthe proper warrant, and the othergovernment is under obligation to
make the surrender; an obligation
which it might deem impossible tofulfill if release on bail were permitted.
The enforcement of the bond, if
forfeited, would hardly meet theinternational demand; and theregaining of the custody of the accusedobviously would be surrounded withserious embarrassment.
Unlike in ordinary domestic cases
wherein the damage caused by an accused
who absconds is contained within thedomestic plane, in extradition, releasing an
extraditee on bail, which provides anopportunity to abscond, puts at risk theinterest of the government to comply withinternational obligations. This is a very
real danger. We have a case wherein aforeigner out on bail had fled to thePhilippines.
There is still no definitive Philippine
jurisprudence on this issue as all the cases
regarding bail in extradition are pending
in different courts.
c. Politically Motivated
I understand that in the United States
the determination of whether a crime is ofa political nature rests with the courts,
while the question of the politicalmotivation of the country requesting
extradition is to be made by the executive
branch. In the Philippines there is still noclear jurisprudence on this matter although
there is a case pending in court which may
indirectly address this issue. In that casethe person sought to be extradited
requested the IAD for copies of the request
and supporting documents. The IAD
refused him access on the ground that it
was still processing the request and thatat that stage there is still no right of access,56

and at any rate he will be furnished all the
documents once the petition for extraditionis filed in court. The stand of the subject
person was that he had a right of access tothe documents at anytime in order that hewould be able to show before the executive
authorities that the request was politicallymotivated. The issue therefore, appears
to be whether the government is duty
bound to notify a person at the soonest
possible time, even prior to filing a petitionin court, that his extradition is sought. One
danger we see in this is that this would
give such person an opportunity to flee
since the executive authorities at this stage
do not yet have access to any judicial
safeguards that would prevent flight.
I noticed that the tenor of the provisions
on politically motivated requests/politicaloffenses are similar to that which is usedin International Refugee Law, particularly
the 1951 Convention Relating to the Status
of Refugees, and the 1967 Protocol relating
to the Status of Refugees, to which thePhilippines acceded to in July 22, 1981.
Consequently, the issue of politicalmotivated requests should be understoodin the context that it is used inInternational Refugee law, as referring toan ordinary criminal offence applied inpolitically suspicious circumstances .
d. Extradition of Nationals
Philippine law allows the extradition of
its nationals subject to the usual exceptions
as contained in the relevant treaties. Outof the four cases wherein extradition was
granted, one of them was a Filipino.
F. MLAT
Unlike in extradition, mutual legal
assistance in the Philippines does not have
any implementing laws for the treaties.
Through practice we have considered both
treaties to be self-executory and therefore,
even in the absence of any local law, thesetreaties have been enforced. MLAT are

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
used in order to aid government
prosecutors in gathering evidence locatedoverseas even at the investigatory stage.
In a way this would substitute for lettersrogatory.
At present, most requests for legal
assistance involve having to examine bankrecords. Legally, this is a problem because
the Philippines has a strict bank secrecy
law. This is particularly true of foreign
currency deposits. It may be argued thatthe treaties supersede the bank secrecy
deposit law as the treaties came at a muchlater time. However, in the treaties there
is no express repeal made and therefore,
counter-arguments are made that there is
no repeal or amendment on the banksecrecy law.
We have a theory, following the case of
Salvacion vs. Central Bank of thePhilippines, that the bank secrecy laws do
not protect “illegitimate” deposits or
fraudulent investments. As the Solicitor
General argued:
It is evident from the above [Whereas
clauses] that the Offshore Banking
System and the Foreign Currency
Deposit System were designed to draw
deposits from foreign lenders andinvestors (Vide second Whereas of PD
No. 1034; third Whereas of PD No.
1035). It is these deposits that are
induced by the two laws and given
protection and incentives by them.
Obviously, the foreign currency deposit
made by a transient or a tourist is not
the kind of deposit encouraged by PD
Nos. 1034 and 1035 and given
incentives and protection by said laws
because such depositor stays only fora few days in the country and,
therefore, will maintain his deposit in
the bank only for a short time.

The reason for the protection was toincrease our links with foreign lenders andto facilitate the flow of desired investments
into the Philippines. Therefore, if the funds
or the accounts can be identified by anoutside source as not being used for
legitimate purposes, then the bank secrecy
laws do not apply.
At any rate, once a request for legal
assistance is received, the IAD files anapplication in court with a prayer toexamine the documents requested, and to
freeze the target accounts. We have been
fortunate that the banks we sought togather evidence and freeze accounts fromwere cooperative, and immediately
complied with the court orders. To date,
we have recovered approximately thirteen
million pesos (P 13,000,000.00) fromlaundered drug money. Probably, it will
be easier to target laundered drug money
as we could then use the 1988 Conventionof Psychotropic Substances also as a legal
basis as it has provisions on mutual legal
assistance and on extradition.
We are cautious in the implementationof MLATs as we are walking a tight rope
because of the absence of any definitive
jurisprudence. Slowly, however, we aregathering materials and formulating
possible arguments against the banksecrecy laws.
Regrettably however, and maybe due tolack of adequate information and resources,
the Philippines has not taken advantageof the MLATs. As the data shows, therequests have been one sided, with thePhilippines being the requested State.

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RESOURCE MATERIAL SERIES No. 57
III. INFORMAL PROCEDURES:
COOPERATION WITH JAPANAs mentioned earlier, we have had anumber of requests from Japan forassistance in gathering testimonial
evidence, and sometimes object evidence as
well. We have also in a number of instances
deported Japanese nationals who fled to
the Philippines in the hope of avoiding
prosecution in Japan.
There are no hard and fast rules
governing our cooperation with Japan.
While the requests are normally coursed
through the appropriate diplomaticchannels, it is not unusual for an advancecopy to be sent directly to my office so thatby the time we receive the official request,
the documents requested or person sought
is already available or in custody.
To better illustrate the workings of this“informal procedure” I would like to narrate
a few actual examples.
ACTUAL CASES A.
On January 18, 1993, defendants
Kosumi Yoshimi and Pablito Franco Barlis
conspired with William Gallardo Bueno
and Joemarie Baldemero Chua, and withmurderous intent, knocked down Kosumi
Shozaburo, defendant Kosumi Yoshimi’s
father (87 years old) on his back, pushed
beddings against his face, tightened anelectrical cord around his neck and stabbed
Shozaburo in the neck with a sharp blade
thereby causing Shozaburo to die fromexcessive bleeding due to punctured
wounds in his neck at the victim’s residence
at Nagoya-shi, Japan. Furthermore, thedefendants sprinkled kerosene from theheater found in the living room over the
bedding etc., ignited the kerosene with alighter one of them was carrying andallowed the fire to spread through aJapanese foot warmer (Kotatsu) to thehouse, thereby causing the entire house to58

be burned down.
The applicable provisions of law violated
werea) Article 199, Penal Code of Japan,
which states that:
A person who kills other person (s)shall be liable to death or
imprisonment with labor for life or
imprisonment with labor for aminimum period of three yearsb) Article 108:
A person who sets fire to and burns
an architectural structure used as aresidence or inhabited by otherperson(s) steam train, electric train,
ship or more shall be liable to death
penalty or imprisonment with laborfor life or imprisonment with forcedlabor for a minimum period of five
years.
c) Article 60:
Two or more persons who act jointly
in the commission of a crime are all
principals.
In February 1994, the Japanese Police
requested the Philippine National Police
through the International Criminal Police
Organization (ICPO) to interrogate
Joemarie Baldemero Chua an accomplice
who had fled to the Philippines. During
the course of the trial proceedings,
accomplice William Gallardo Bueno’s
testimony at Nagoya District Court
conflicted with Joemarie’s statement taken
by an investigator of the Criminal
Investigation Unit of the Philippine
National Police on the following crucial
matters :1. The time when the conspiracy tocommit murder and arson wasformed;2. The details of the conspiracy;

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
3. The person(s) among the three
Filipino accomplices including
Joemarie, who actually murdered
Shozaburo by winding and tightening
an electrical cord around his neck andstabbing Shozaburo in the neck witha sharp blade.
4. The person who sprinkled kerosene
from a heater set fire to the house andso on.
Due to the above-mentioned
discrepancies, it was difficult to determine
whose statement was true. Therefore, it
became necessary to request a Public
Prosecutor in the Philippines to interrogate
Joemarie again, in the presence of aJapanese Public Prosecutor, about theparticulars and circumstances of theconspiracy to commit murder and arson
including the roles of the three Filipino
accomplices, the reward and the details of
the actual execution of above-mentioned
crimes.
On February 5, 1996, Mr. Hirosi Shimizu
Chief Prosecutor of the Nagoya District
Public Prosecutors Office of Japan wrote a
letter to the judicial authorities of the
Republic of the Philippines requesting forassistance in criminal investigation for thecriminal cases of Murder and Arson to
Inhabited Structure against Mr. Kosumi
Yoshimi and Pablito Franco Barlis, whichwere all under trial procedure at Nagoya
District Court.
A note verbale, no. 88-96, was issued by
the Embassy of Japan in Manila to the
Department of Foreign Affairs requesting
the cooperation of the authorities of thePhilippine Government in the said
investigation. Philippine Department of
Foreign Affairs endorsed all documents to
the Department of Justice. On March 25,
1996, then Secretary of Justice Teofisto T.
Guingona Jr., issued a Department Order
designating this representation to assist

the Japanese Public Prosecutor in Iloilo
City on March 26 to 28, 1996 ininterviewing one Joemarie Baldemero
Chua in relation to the said criminal cases.
Immediately, we all proceeded to Iloilo
City and I personally conducted
clarificatory questioning on the person of
Joemarie Baldemero Chua. He wasassisted by a lawyer from the Public
Attorney’s Office. Joemarie Chua
voluntarily and freely narrated the incident
that happened on January 18, 1993. The
Japanese Public Prosecutor and his
assistant went back to Japan with thesworn statement of Joemarie Chua.
Kosumi Yoshimi was sentenced to life
imprisonment for Murder and Arson to
Inhabited Structure at Nagoya District
Court on November 11, 1997 and his Kosoappeal was dismissed at Nagoya High
Court on November 19, 1998. His Jokokuappeal is pending at the Supreme Court.
Pablito Franco Barlis was sentenced to
imprisonment with labour of thirteen years
for Murder and Arson to Inhabited
Structure at Nagoya District Court on
February 26, 1998 which judgment has
now become final. William Gallardo Bueno
was sentenced to imprisonment withlabour of fifteen years for Murder andArson to Inhabited Structure at Nagoya
District Court on May 11, 1995 which
judgment has now become final.
ACTUAL CASES B.
On January 12, 1990, the Osaka
Maritime Police and the Osaka Customs
Police arrested Akira Fujita in Manila who
had been wanted for purchasing andshipping handguns from the Philippines inconnection with the smuggling of 40
handguns by a Yamaguchi-gumi (Yakuza)
syndicate member from the Philippines.
Police investigation revealed that Fujita
conspired with one Hironori Takenouchi,
of lzumi City, a Yakuza member. Fujita

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RESOURCE MATERIAL SERIES No. 57
allegedly purchased 40 handguns and 800
rounds of ammunition with one million andseveral hundred thousand yen he received
from Takenouchi and concealed the guns
and ammunition inside the furniture heshipped to Japan. Fujita was subsequently
convicted and was sentenced to seven years
imprisonment on July 19, 1990.
On October 8, 1997, Interpol Tokyo
informed Interpol Manila that Akira Fujita
departed from Japan on the Pakistan
Airlines flight bound for Manila on October
7, 1997. An official of the Japanese
Embassy in Manila requested thisrepresentation for assistance with theinformation on the whereabouts of Fujita.
I immediately referred the case of Fujita
to the Chief of the Intelligence Division of
the Bureau of Immigration, and two days
later, or on October 9, 1997, at about 6:30
PM of the same date, Fujita was arrested
by Immigration agents. After one week,
he was deported back to Japan.
ACTUAL CASES C.
On March 8, 1999, Mr. Norio Ishibe, theChief Prosecutor of the Akita District
Public Prosecutors’ Office requested the
judicial authorities of the Republic of thePhilippines for assistance in a criminal
investigation. The facts of the case are as
follows:
Defendants Akihito Ishiyama was apostmaster of Tokiwa Post Office in Akita,Japan. He handled and was in charge ofhandling cash at the Tokiwa Post Office aspart of his work responsibilities. At around6:00 P.M., October 23, 1998, the defendant
appropriated cash in the amount of
32,305,500 yen from Tokiwa Post Office forhis own use.
The applicable provisions of law
violated :Penal Code of Japan
Article 253
60

A person who wrongfully
appropriates another property which
has come into his possession in thecourse of business shall be punishedwith imprisonment with labor for not
more than 10 years.
Article 235
A person who steals the property of
another commits the crime of larceny
and shall be punished withimprisonment with labor for not morethan 10 years.
Defendant Ishiyama stated before an
investigator that he left Japan for thePhilippines with cash totaling about
33,000,000 yen and gave 970,000 yen to
Lody’s sister, Mina, and left 30,000,000 yen
with Sunny Laxa, the common-law
husband of Mina.
In order to confirm the defendant’ sstatement and to ascertain how the money
he got was spent, one Japanese Public
Prosecutor and an assistant weredispatched to conduct interviews of
witnesses. This representation was
designated by the Chief State Prosecutorof the Philippines to assist them. With thisdesignation, this representation together
with the Japanese Public Prosecutor andhis assistant found the witnesses in one ofthe provinces. They voluntarily and freely
gave their respective sworn statements.
Akihito Ishiyama was sentenced to
imprisonment with labour of four years andsix months for embezzlement, larceny andfraud by the Akita District Court on
September 1, 1999 which judgment has
now become final.
ACTUAL CASES D.
On September 1, 1998, Mr. Hideo Iida,
the Chief Public Prosecutor of the Osaka
District Public Prosecutors’ Office wrote a
letter to the Judicial authorities of the
Republic of the Philippines requesting for114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
assistance in criminal cases of
Abandonment of Corpse and Violation of
the Firearms and Swords Control Law
against Chow On Park who intended toabandon the body of one Haruo Nishikawa
murdered by Ho Ji Chong alias Hiroshi
Matsuda by shooting, and placed the corpse
into the trunk of the victim’s passenger car
parked in the parking lot on the first floorof Dainichi Building at Kadoma-shi, Osaka
at around 6:00 PM on November 28, 1997
and drove that car to the parking lot of
Hoshigaoka Kosei Nenkin Hospital locatedat Hirakata-shi, Osaka and left the bodythere.

Japanese Public Prosecutor HaruhikoFujimoto and his assistant were dispatched
to Manila. This representation was
designated by the Chief State Prosecutor
to assist them. I was able to persuade Ruby
Marcilla Arai to turn over the money kept
in the safe deposit box of China Bank
Corporation. She personally handed to me¥24,480,000. I delivered the said amountto the Department of Foreign Affairs (DFA).
The DFA turned over the money to theofficials of the Japanese Embassy in
Manila who turned over the said amountto the Osaka District Public Prosecutors
Office.

The defendant received about 30 million
Japanese yen in cash as a reward for thecriminal act from the accomplice Ho Ji
Chong alias Hiroshi Matsuda on November
28, 1997. The defendant’s wife, MarucillaPark Ruby Cristina alias Ruby Arai,entered the Philippines with the said cashon December 6, 1997 upon defendant’sorder. Said Marucilla asked her cousin
Bernardo Marilou y Rivera to keep
¥5,480,000 in the safe-deposit box atWestmont Bank and ¥19,000,000 in a safedeposit box at China Banking Corporation.
Since the defendant got the said money inreward for the criminal act of this case, themoney had to be seized and confiscated as
evidence.

Chow On Park alias Haruhiko Arai wassentenced to imprisonment with labour to
two years for Abandonment of Corpse andviolation of the Firearms and Swords
Control Law as well as the confiscation of
24,480,000 yen and a hand gun at Osaka
District Court on April 30, 1999, and his
Koso-appeal was dismissed on November
4, 1999. His Jokoku-appeal is pending at
the Supreme Court.

The applicable provisions of law
violated :Penal Code of Japan
Article 190 and Article 60
Abandonment of Corpse
Article 31-3 paragraph 1 and Article 3
paragraph 1 of the Firearms and Swords
Control Law and Article 60 of the Penal
Code shall be applied to the offense
described above as a violation of theFirearms and Swords Control Law.

It may be worth noting that the averagetime it took us to comply with requests forassistance is about one (1) week. The
absence of any procedure in these cases
helped reduce bureaucratic red tape andthereby, cut down on the time element.
Also, it appears that most witnesses werewilling to cooperate once it was explained
to them that only their testimony would
be needed and that they would not be
extradited or charged. Furthermore, after
explaining to potential witnesses oraccessories that only the proceeds of thecrimes would be confiscated but no charges
will be brought against them, they willingly
gave up the proceeds.
It is important therefore, that those
involved in legal assistance be able to meetpotential witnesses in order to be able toallay their fears. Once this initial fear was

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RESOURCE MATERIAL SERIES No. 57
properly addressed, the witnesses became
cooperative.
On the aspect of “surrender”, theprocedure used was basically deportation.
The legal justifications for deportation
would be their illegal entry, i.e. usually
through falsified documents; or that they
were previously blacklisted and therefore,
even if they were able to enter, they arestill legally subject to deportation whenfound.
Probably, this cooperation setup with theJapanese government works because of thepeculiarities of the Japanese legal system
whereby affidavits executed overseas areadmissible as evidence. But what thesecases show is that even outside a formal
framework, where two governments arewilling to share resources and expertise,and have developed close working
relations, real feasible solutions can occur.
It will be noticed that the Philippines
does not have any extradition or mutual
legal assistance treaty with Japan. This
however, has not stopped us fromcooperating with Japan in the effort toenforce criminal law. If we factor thenumber of cases we cooperated with Japan(both for legal assistance, and fordeportation) the statistics would be as
follows:
CHART 362

IV. CONCLUSION
Extradition and Mutual Legal
Assistance in the Philippines is still at the
infancy stage. There is little local
jurisprudence or writings on the subject.
This may be a reason why we still use
informal approaches.
We still have a long way to go. Being adeveloping country we are still way behind.
However, this will give us the unique
opportunity to develop the law and blaze
new trails. Often, we are mere players ina field that has been set by our forebears,
but here, as we play we make the rules.
Very few are given this opportunity.
We are fortunate that we have seminars
such as this one, whereby government
officials are exposed to the experiences ofdifferent countries. We can benefit fromknowing the laws and legal systems thatwork, and can adopt the same to fit our own
country’s legal peculiarities as we develop
the law. More important, fora such as thesehelp foster lasting friendships among those
who will one day be involved in extraditionand legal assistance. In my personal
experience, my friendship with UNAFEI
Director Kitada, has been a positive factor
in Philippine-Japanese cooperation. Let us
then use these opportunities to work formore effective and lasting solutions to the
problems facing us. It is precisely here
where we can mutually benefit by sharing
our resources, ideas and expertise andthereby contribute to world peace andharmony. And may the product of the work
we do here contribute to a better generationin the future with less crime and more
prosperity and justice.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSREFERENCES• Marjorie M. Whiteman, 6 DIGEST OF
INTERNATIONAL IAW, p. 727,
{1968}, hereinafter 6 WHITEMAN.
• Presidential Decree No. 1069,
Philippine Extradition Law• 235 Supreme Court Reports
Annotated (SCRA) 341, 354 {1994}.
• Marubeni Corporation vs.
Commissioner of Internal Revenue(117 SCRA 500) {1989}.
• Michigan vs. Doran, 439 US 282, 296{1978}.
• Joaquin G. Bernas, S.J., THE 1987
CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 1996 ed., p.429430; see also Wright vs. Henkel, 23
Supreme Court Reporter 781, 787.
• People vs. Alano, 81 Phil. 19, 21{1948}; see also Mejoff vs. Director of
Prisons, 90 Phil. 70 {1951}.
• De la Rama vs. People’s Court, 77 Phil
461 {1946}.
• Salvacion vs. Central bank of thePhilippines, 278 SCRA 27, 45 (1997).
• Whereas Clause of Presidential
Decree No. 1034.

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CONTEMPORARY PROBLEMS OF EXTRADITION: HUMAN
RIGHTS, GROUNDS FOR REFUSAL AND THE PRINCIPLE
AUT DEDERE AUT JUDICARE
Michael Plachta*
I. EXAMINATION OF HUMAN
RIGHTS IN THE CONTEXT OFEXTRADITION
The growth and expansion of the humanrights concept have inevitably led it tocover the vast area of international
cooperation in criminal matters whose
most renowned form, extradition, has been
for centuries dominated by considerations
and concerns deeply rooted in stateinterests, such as sovereignty, maintaining
power and domestic order, keeping external
political alliances, etc. Human rights havebeen granted protection only in so far asthat would correspond with these statedpriorities. The human rights movementwith its unequivocal emphasis on theirprotection as such, has changed thatperspective.
This development coincided with thetendency towards strengthening theposition of individuals through therecognition of their personality ininternational law, albeit in a very limited
scope and yet still contested by someauthorities, and acknowledgment that theyshould have their say in international
matters involving their interests.
Stipulations of recent multilateralconventions regarding the rule of speciality
illustrate this tendency. One example canbe found in the 1995 Convention on
Simplified Extradition Procedure,elaborated within the European Union.1
Since the mutual relationship between
extradition and human rights has raised a* Gdansk University, Faculty of Law, First Vice-Dean,
Chair of Criminal Procedure, Poland

64

lot of interest2 recently which, in turn,produced a number of publications on thissubject,3 this paper offers some generalcomments which may become a “food forthought” and a basis for further discussion.
Mutual relationships between humanrights and extradition are often
characterized as a “tension” between
protective and cooperative functions of thisform of international legal assistance.
Generally, this problem can be approached
and viewed from three perspectives. First,
these relationships can be described in the1

Convention drawn up on the basis of Article K.3 of
the Treaty on European Union, on simplified
extradition procedure between the Member Statesof the European Union, 10 March 1995, O.J.
30.03.1995, No. C.78/1.
2 In the eighties, the problem of extradition andhuman rights was discussed by the Institute ofInternational Law at its Dijon session which
adopted a resolution, following a report submitted
by K. Doehring, 60 Yearbook of the Institute ofInternational Law 211, 306 (1983). In the nineties,
this problem was a subject of a conference held by
the International Association of Penal Law in Riode Janeiro in 1994, 41 Revue internationale de droit
pénal 67 (1995). In the most recent years, theInternational Law Association has devoted muchof its attention to this problem, producing threereports elaborated by Ch. Van den Wyngaert and
J. Dugard and adopting three resolutions. See
Report of the 66th Conference of the International
Law Association (Buenos Aires, 1994), 4, 142;
Report of the 67th Conference of the International
Law Association (Helsinki, 1996), 15, 214; Reportof the 68th Conference of the International Law
Association (Taipei, 1998).

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS“rule-exception” terms. Second, it could beargued that only one side sets the goal or
the objective while the other has to yieldby making necessary concessions. One of
the issues that would have to be resolved
here refers to the starting point in thisanalysis: should it be the needs of law
enforcement or the protection of humanrights? Third, and the most appropriate,
the coexistence between the interests,
needs and values involved in theinternational cooperation in criminal
matters, on the one hand, and theprotection of human rights, on the other,should be sought and based on a reasonable
compromise which would avoid the “criticalpoint” beyond which human rights become
unbalanced and, therefore, constitute an
obstacle to an effective cooperation in thefight against crime.
Reaching a compromise is a difficult
task, for it requires recognizing, taking intodue consideration, assessing and weighing
3

See e.g. J. Dugard, Ch. Van den Wyngaert,
Reconciling Extradition with Human Rights, 92
AJIL 1 87 (1998); Ch. Van den Wyngaert, Applying
the European Convention on Human Rights toExtradition: Opening Pandoras Box?, 39International and Comparative Law Quarterly 757(1990); O. Lagodny, S. Reisner, Extradition Treaties,
Human Rights and “Emergency Brake“-Judgments:
A comparative European Survey, 2 Finnish
Yearbook of International Law 237 (1994); O.
Lagodny, W. Schomburg, International Cooperationin Criminal Matters and Rights of the Individualfrom a German Perspective, 2 European Journal of
Crime, Criminal Law and Criminal Justice 379(1994); A.H.J. Swart, Human Rights and theAbolition of Traditional Principles, in: A. Eser, O.
Lagodny (eds.) Principles and Procedures for a newTransnational Criminal Law 505 (1992); G. Gilbert,
Aspects of Extradition Law 79-93 (1991); C.H.W.
Gane, Human Rights and International
Cooperation in Criminal Matters, in: P.J. Cullen and
W.C. Gilmore (eds) Crime Sans Frontieres 186(1998).

many various factors and components. The
process of balancing all the interests
involved should be carried out on twolevels: first, human rights versus needs oflaw enforcement and international
cooperation; second, human rights of therequested person (fugitive) versus humanrights of others (and society).
In addressing and evaluating therelevancy of human rights in the context
of extradition, two criteria could be
employed. One would emphasize thenature of a specific right as vital ornecessary. This approach requires sortingout all human rights in order to “designate”
the appropriate ones. It is here that theconcept of “fundamental human rights” hasemerged and is gaining a widespread
acceptance. This concept is based on theunderstanding that out of all human rights
a group has been recognized as nonderogable in all universal and regional
instruments and, therefore, has to be
granted protection the specificity of
extradition notwithstanding. An obvious
disadvantage of applying this criterion isthat it offers a very restrictive scope ofhuman rights which are covered under thenotion of “fundamental human rights”. At
present, there are only four such rights
which are regarded as non-derogable: theright to life; the prohibition on torture andother forms of cruel, inhuman anddegrading treatment and punishment; theprohibition on slavery; and freedom fromex post facto or retroactive criminal laws.
The second criterion points to the scope,degree and severity of the violation rather
than the nature of the right. Byemphasizing the threshold, this approachindicates that controlling is not the rightas such but the way it was, or likely to be,violated. There seems to be a generalagreement that this threshold must be
sufficiently high to justify the refusal of theextradition request. Such standard was

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RESOURCE MATERIAL SERIES No. 57
elaborated by the European Court of
Human Rights in its seminal judgment in
the Soering case where the Court held that
the United Kingdom, acting as therequested state, must have not extraditeda fugitive “where substantial grounds havebeen shown for believing that the person
concerned, if extradited, faces a real riskof being subjected to torture or to inhumanor degrading treatment or punishment in
the requesting country”.4
The “real risk” test was followed by the
UN Human Rights Committee in Ng v.
Canada.5 Also the national courts seem tobe going along the similar lines when theyground the refusal of extradition on thenotions of a “blatant unjust”, “violation to
the principles of fundamental justice”,“shock to the conscious of Jurists”, offensive
to the conceptions of “ordre public”, “grossviolation”, “flagrant breach”, etc. An
appropriate scrutiny is called for by therecommendations adopted by both theInternational Law Association at its Taipei
Conference in 1998 and the participants of
the Oxford Conference on International
Cooperation in Criminal Matters, convenedby the Commonwealth Secretariat and heldin 1998. Both documents propose thatextradition be refused if there issubstantial evidence that if a fugitive werereturned there is a real risk of a serious
violation of human rights. The “real risk”
test is, therefore, qualified and combinedwith the requirement of a “serious
violation”.
Besides “fundamental human rights”,
there is another category which raises adifficult question: are the fair trial rights
relevant and applicable to extradition, andif so, which ones and to what extent? This
4

Soering v. United Kingdom, E.C.H.R. Series A, No.
161 (1989); 28 ILM 1063 (1989).
5 Ng v. Canada, H.R.C., Communication No. 469/
1991, 5 November 1993, 98 ILR 479 (1994).

66

problem should be discussed in two
separate contexts as it generates different
issues when the application of the right tofair trial is analyzed from the point of viewof the requesting state and the requested
state. In the context of the former, twosituations (or scenarios) must be
distinguished depending on whether there
has been an actual violation of fair trial
rights in the proceedings that have led tothe conviction and sentence, or there ismerely a potential for such a violation. The
following flowchart represent an attempt
to point out and illustrate major problems
involved in the process of examination as
well its methodology.
FLOWCHART
The questions raised in the context of
the requested state are different. They
relate to the nature of the extradition
proceedings carried out by the competentauthorities of that country. The disparityof domestic legislation and state practiceis striking. The solutions adopted invarious parts of the world range frompurely administrative procedure, judicial
or mixed procedures, criminal proceedings
to the procedure sui generis. Given such a
disparity it does not seem advisable orfeasible to propose a uniform proceduraland organizational system that would be
acceptable to all states. Instead, efforts
should concentrate the elaboration of a listof “core fair trial rights” that must be
guaranteed to the extraditurus by therequested state no matter which
procedural system it has adopted.
Although the International Covenant ofCivil and Political Rights (Article 14) andthe European Convention on Human
Rights (Article 6) might offer a good“starting point” an examination should notstop there: the rights embodied therein
have to be tailored to the specific natureand needs of extradition.

114TH INTERNATIONAL TRAINING COURSE
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Flowchart: examination of a fair trial objection to extradition
applicable standard

national :constitutional order (rights)
in the requested stateinternational :* global instruments,* regional conventions,* customary international law

extraditee(tried and) convicted and sentenced(actual violation)

extradition
deniedOR

condition(s)attachedsought for trial(potential violation)

inquiry conducted in the requested state:••sufficient assurances by
the requesting state

YES

NO

extradition
grantedextradition
denied••••evidentiary difficulties, e.g. relikelihood;disparity of interpretation (basedon or taking into account domestic
rules, standards and practice)burden of proof on the extraditee;
threshold: flagrant (andsystematic)? real risk?
conditions ?
competent authority: government
or courts?

outcome: highly uncertain67

RESOURCE MATERIAL SERIES No. 57
II. GROUNDS FOR REFUSAL OF
EXTRADITION: A CRUCIAL AND
YET CONTENTIOUS ISSUE
A. Criteria for the classification ofgrounds for refusal of extradition
1. Binding Force:
A. Mandatory,
B. Optional,
2. Source:
A. International law:
1. treaty and convention stipulations,
2. customary norms,
B. Domestic legislation:
1. constitution,
2. statutes,
C. Jurisprudence of the judiciary:
1. domestic courts,
2. international tribunals,
3. Subject Matter:
A. Nature of the offence:
1. political,
2. military,
3. fiscal,
B. Requested person:1
1. nationality,
2. immunity (under):a) international law,b) doctrine of state,c) domestic statutory or case law,
3. refugee status,
4. humanitarian considerations,5. discriminatory treatment,
C. O b s t a c l e s t o p r o s e c u t i o n o r
punishment:
1. substantive:a) principle of legality (nullum
crimen sine lege, nonretroactivity),b) s t a t u t e o f l i m i t a t i o n(prescription),c) other,68

2. procedurala) a d h o c o r e x t r a o r d i n a r ytribunal,b) trial (judgment) in absentia,c) res judicata (ne bis in idem,
double jeopardy):(i) f i n a l j u d g m e n t i n t h erequested state,(ii) final judgment in the thirdstate,d) l i s p e n d e n s ( p e n d i n gprosecution),e) declining to prosecute,f) amnesty and pardon,g) lapse of time (unreasonable
delay),h) immunity under:(i) international law,(ii) doctrine of state,(iii) domestic statutory or caselaw,i) other,[Note: obstacles under “a” and “b”—
extradition-specific, obstacles under “c”
through “i” — general.]D. Punishment:
1. death penalty,
2. other sanctions,E. Jurisdiction:
1. concurrent jurisdiction,
2. extraterritorial jurisdiction,
F. Human rights:
1. prohibition of cruel, inhuman ordegrading treatment or
punishment,
2. other:a) d i r e c t a p p l i c a t i o n o finternational instruments,b) i n d i r e c t a p p l i c a t i o n - v i adomestic legislation,

114TH INTERNATIONAL TRAINING COURSE
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4. State’s Interests Involved:
A. R o o t e d p r e d o m i n a n t l y i n t h erequested state:
1. nature of the offence,
2. requested person,
3. lis pendens (pending prosecution),4. declining to prosecute,
5. amnesty and pardon,
6. immunity under domestic statutory
or case law,
B. R o o t e d p r e d o m i n a n t l y i n t h erequesting state:
1. ad hoc or extraordinary tribunal,
2. trial (judgment) in absentia,
3. punishment,
4. human rights,
5. lapse of time (unreasonable delay),
C. “Neutral” (or any of the states
involved):
1. statute of limitation (lapse of time),
2. res judicata (ne bis in idem, double
jeopardy),
3. immunity under:a) international law,b) doctrine of state,refusal of extradition are impressive. Not
only have they grown significantly over thelast hundred years but, more importantly,
still have a considerable potential forfurther growth (refer to section III of theChart: C.1 .c, C.2.g, D.2, F.2). This tendency
worries many government officials andpeople directly involved in the extradition
process who fear that, if upheld andstrengthened, the continuous expansion of
defences, exceptions, exemptions, andexclusions may, in the long run, seriously
undermine this mechanism and frustrateefforts aimed at bringing fugitive offenders
to justice. Besides, the grounds for refusal
are a “double dulled sword”: while it isrightly argued that their existence is aconditio sine qua non for each and every
form of international cooperation incriminal matters because they give anassurance to the states involved that theirvital interests will be respected, at thesame time, it must not be ignored thatfrequent or, viewed from the perspectiveof the requesting state, unwarranted resort
to refursal may have adverse effects on
international relationships. Undeniably,
the longer the list of grounds for refusal,
the weaker the extradition may become.

5. Rationale :A. Mistrust among states and the lackof confidence in one another’s justicesystem,B. Political considerations,
C. International undertakings of a state,
D. Protection of human rights,
E. Sovereignty,
F. Tradition,
G. Notions of fundamental justice andfairness embodied in the domestic
legal system,
H. Discrepancies between legal systems.
B. Comments on the grounds forrefusal of extradition
Admittedly, both the size of the catalogue
and the length of the list of the grounds for

To prevent the deterioration of themechanism of international rendition of
offenders and to strengthen its
effectiveness, one of the available options
is to improve this process itself through the
optimalization of its treaty and statutory
regulation. One way to proceed would beto downsize the catalogue of grounds forrefusal, or at least, to stop or slow down
the process of its further growth. However,since the possibilities for improvement inthis way are naturally limited theresources have to be sought elsewhere.
This is where the principle aut dedere aut
judicare comes into play as an alternative
solution. The properly designed
mechanism for “judicare” may become aneffective countermeasure that will, to a

69

RESOURCE MATERIAL SERIES No. 57
certain degree, compensate for the
expansionist approach towards thegrounds for refusal.

into the problem and examine the natureand meaning of each ground, irrespectiveof legal consequences it produces.

It must be made clear that the chart does
not cover all situations where the request
submitted for extradition is denied. It islimited to the categories which, by way of
tradition and linguistic convention falls
under the “grounds for refusal”. 6 In
addition to them, there are all theconditions and requirements pertaining,e.g. to the definition of an extraditableoffence, which, if not met or fulfilled, also
result in the request being denied.

To carry out this task successfully, we
have to start from elaborating distinct
categories that could accommodate all of
the existing (and potential) grounds forrefusal. Section III of the Chart raises anumber of problems, questions and doubts.
For example, are all these categories fully
disjunctive, i.e. do they not overlap? Should“human rights” be, as they appear in thechart, placed separately, or — as someauthors maintain7 — no separate-category
is needed as they can, and should, be
accommodated in other categories, mostnotably under the “obstacles to prosecution
and punishment”? Why are somecategories left open (C.1.c C.2.g, D.2, F.2)?
Two reasons: first, the author did not havean opportunity to conduct a full-scalecomparative analysis of all international
treaties and domestic legislation, otherwise
chances are that these blank spaces would
have been filled in; second, the author sees
them as a “potential for growth”.

The first criterion used in theclassification, the binding force of aparticular ground for refusal, is of utmost
importance for the states involved in theextradition process, especially for therequested state. In countries where thecourts have been empowered to inquire into
the legal admissibility of the surrender, thecontents of the catalogue for mandatory
refusal is the most valuable guide, for it
delimits the scope of situations where thecourt will issue a negative opinion
regarding extradition. It is then only
logical that the executive organ authorized
to make the final decision is bound by thiskind of court’s ruling which says that theextradition is not (legally) allowed.
However, this classification presents
little value and help for those whose efforts
focus on modifying and improving thetreaty and domestic regulations in thisarea. Shuffling the grounds for refusal
between the two catalogues back and forth
is not very promising, nor does it bear any
valuable fruits, especially in terms ofcommon acceptance of a particularsolution; therefore, we have to reach deeper

Section IV represents yet anotherattempt aimed at examining and analyzing
this problem. If we consider extradition
as a process based on bipartite relationshipbetween the requesting state and therequested state, then the question arises
concerning the side on which the obstacle
to which the particular ground for refusal
relates is located. When the requested
state refuses to surrender the personsought, does it so because the real problem
lies within its borders and its own
jurisdiction, or, maybe, the invoked groundfor refusal points to the requesting state?
While seeking answers to these questions,the distinction was made between grounds

6

7

A.H.J. Swart, Refusal of Extradition and the United
Nations Model Treaty on Extradition , 23
Netherlands Yearbook of Int’l L. 175 (1992).

70

See e.g. M. Ch. Bassiouni, INTERNATIONALEXTRADITION: UNITED STATES LAW AND
PRACTICE 496 (3rd ed. 1996).

114TH INTERNATIONAL TRAINING COURSE
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for refusal which are based on
circumstances for which the responsibility
are borne predominantly by the requested
state and those which fall predominantly
within the realm of the requesting state.
The third category was also distinguishedas there are a few instances where theground for refusal, as defined in generaland abstract terms, is “neutral” in the sensethat it there is not an inseparable link
between the underlying obstacle and only
one of the states concerned. An analysis
carried out along these lines should
generate further arguments in favor ofmandatory or optional nature of somegrounds for refusal. It should also
contribute to the elaboration of a more
efficient mechanism based on the principle
aut dedere aut judicare by indicating where
it may be reasonable to expect from therequested state to proceed with “judicare”
when its authorities deny the extradition
request.
An attempt was also made to get to theheart (or roots) of the problem by asking
the question: WHY does the requested state
deny extradition when its executive
authority invokes this or that ground forrefusal? This question has nothing to dowith the problem of legal and factual
justification of the negative decision in any
given case. Nor does it imply any sort ofassessment or evaluation of the proprietyof the refusal. Rather, it suggests that it
may be more instructive to move thisinquiry further back to see why thatparticular ground for refusal was included
in a treaty or domestic law in the first place.
Therefore, when it comes to the applicationof that legislative enactment or treaty
stipulation in practice the rationale behind
it in many cases either is not fully realized,
or lies somewhere in the “shadow”. It is
this author’s strong belief that only bybringing the true motives and reasons tolight can we challenge them, and only bychallenging them, better still removingsome of them, can we make any meaningfulchanges within the framework of thegrounds for refusal possible, thereby
modernizing and re-shaping the existing
system of international extradition. The
proposed inquiry does not necessarily haveto confirm the status quo; instead, it may
indicate either that the rationale, althoughwell founded and valid in the past (e.g. inte 19th century), has out-lived, and is notsustainable today as completely
incompatible with the evolved
international relationships, or, conversely,that the need has emerged calling for new
exceptions and exemptions.
Section V of the Chart summarizes theresults of the preliminary investigation
into this problem. The classification based
upon the rationale behind the grounds forrefusal is far from perfect, and the resulting
picture is not as clear-cut as in the case ofother criteria. Several factors havecontributed to this. First, the grounds forrefusal usually are not analyzed from thisperspective; its examination is carried out
in legal terms, and is limited to treaty and/or legislative regulation. Second, the realsignificance and role of the rationale forrefusal are downplayed, if not completely
ignored, by the governments and theirauthorities involved in the process of
extradition. Third, since no inquiry into
these matters is being made as irrelevantto the rendition it is not an easy task to“translate” each and every category ofrationale into one (and only one) groundfor refusal, and vice versa.
The mutual relationships between the
grounds for refusal and the rationale aresomewhat “muddled” due to the fact that
there does nor exist a logical link between
them, the result being that the categoriesof rationale do not have their specificcounterparts within the grounds for refusal
which could be easily identified andestablished by way of necessity. The

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RESOURCE MATERIAL SERIES No. 57
opposite is true: a ground for refusal may
be based on more than just one rationale
and, based on one category of rationale,
more than one ground for refusal may be
invoked. For example, the political offence
exception (section III, A.1) may be rooted
in at least the following categories ofrationale (section V): mistrust amongstates and the lack of confidence in one
another ’s justice system (A), politicalconsiderations (B), and notions offundamental justice and fairness embodied
in the domestic legal system (of therequested state)(G). Similarly, the mistrust
and the lack of confidence (section V, A) may
result in refusing extradition on one of themany grounds (section III), such as
nationality of the requested person (B.1),
discriminatory treatment (B.5), someprocedural obstacles to prosecution (C.2),
and the protection of human rights (F).
It is submitted that this rather
unexplored territory should become asubject of further and more detailed
studies. A report from such an analysis,
especially when drafted in acomprehensible language and formulated
in practical terms, may constitute a much
more effective tool that could be used toconvince both the government officials andthe politicians, most notably the membersof the national parliaments, that, possibly,
the time has come to change their approachto and their way of thinking about
extradition and the grounds for refusal
thereof. Most importantly, such a study
should contribute to the common
understanding that the so-called
traditional grounds for refusal, based on
the rationale which itself is rooted in the“old days’” concepts and notions, may bepreserved and accommodated insofar as
they are compatible with the modern
approach to extradition.

72

III. THE PRINCIPLE AUT DEDEREAUT JUDICARE
A. Present status of the principle
aut dedere aut judicare underinternational law
If the possibility of an offender ’s
impunity is recognized as the most serious
danger caused by the practice of nonextradition of nationals, then from thepoint of view of criminal justice it should
not matter in the territory of which state
he is prosecuted and punished as long as
the justice is done. This was the underlying
idea of the maxim aut dedere aut punire as
it was originally formulated by Hugo
Grotius in 1625:“The state in which he who has beenfound guilty dwells ought to do one
of two things. When appealed to, itshould either punish the guilty
person as he deserves, or it should
entrust him to the discretion of theparty making the appeal. This lattercourse is rendition, a procedure more
frequently mentioned in historicalnarratives (...) All these examples
nevertheless must be interpreted in
the sense that a people or king is not
absolutely bound to surrender aculprit, but, as we have said, either
to surrender or to punish him”.8
When interpreting these words today, it
must be remembered that the scope of
application of this maxim was limited to“crimes which in some way affect humansociety” as a whole, and which incontemporary language can be identified,
to a certain extent, as international
crimes.9 Moreover, the rule presupposed
an existence of a “triggering mechanism”,
8

H. GROTIUS, DE IURE BELLI AC PACIS, Book
II, Chapter XXI, para. III-1,2, IV-1,3;transl. F. W.
Kelsy (ed.), THE CLASSICS OF INTERNATIONAL
LAW 526-529 (1925).

114TH INTERNATIONAL TRAINING COURSE
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or “appeal”, which today would betranslated as an extradition request.
Finally, while in the original wording analternative to dedere was punire, it cannot
be held that Grotius really meant exacting
punishment without first establishingguilt.10 The accused fugitive may turn out
to be innocent. Thus, the most that canrightly be demanded from the requested
state in lieu of extradition is to put him on
trial, or prosecute him (judicare).11
Under the aegis of this maxim, insteadof it being a last resort if extradition isrefused on the grounds of nationality of the
fugitive offender, prosecution and trial in
the requested state would be elevated to amore pro-active status in international
criminal law. At present, the prevailingview hold that extradition, or some variant
thereof, is the exclusive way of bringing
fugitive offenders to justice. It is acceptedthat the principal aim must be to prosecute
9

Generally, two methods have been proposed todefine an international crime. One is to use a
concise and general definition, the other is toemploy a set of criteria (“penal characteristics”) for
identifying such offences. The former is advocatedby E.M. Wise, International Crimes and Domestic
Criminal Law, 38 DePaul L. R. 923-933 (1989),
while the latter is supported by M. C. BASSIOUNI,A DRAFT INTERNATIONAL CODE AND DRAFTSTATUTE FOR AN INTERNATIONAL CRIMINAL
COURT 21-65 (1987).
10 In fact, GROTIUS himself seems to have beencognizant of the principle of fundamental justice,for he added the following note: “For surrendershould be preceded by judicial investigation; it is
not fitting ‘to give up those who have not been
tried’”. GROTIUS, supra note 144. Book II, Chapter
XXI, para. IV(1).
11 M . C . B A S S I O U N I , I N T E R N A T I O N A L
EXTRADITION: UNITED STATES LAW AND
PRACTICE 5(3 rd ed. 1996): G. Guillaume,
Terrorisme et droit international, 215 Hague Rec.
287, 371 (1989-III): “the true option which is open
to states is necessarily aut dedere aut prosequi”.

the fugitive and that international publicorder requires international cooperationand mutual assistance, then a morepositive acceptance of trial in theextraditee’s home country is necessary. To
determine the effectiveness of the system
based on aut dedere aut judicare withrespect to the extradition of nationals, thefollowing three problems have to beaddressed: first, the status and scope of
application of this principle underinternational law; second, the hierarchy
among the options embodied in this rule,provided that the requested state has achoice; third, practical difficulties in
exercising judicare.
Despite persuasive arguments advanced
by leading authorities in international
criminal law to the contrary,12 the principle
aut dedere aut judicare has not gained thestatus of a norm of international customarylaw. In order to qualify as a customary ruleof international law binding on theinternational community and to satisfy therequirements of Article 38, paragraph 1 (b)of the Statute of the International Courtof Justice concerning sources ofinternational law, two elements have to be
proved: (1) a material element manifested
by a general practice, and (2) opinio juris
sive necessitatis, that is the conviction thatthe practice is “accepted as law”. However,contemporary practice furnishes far fromconsistent evidence of the actual existenceof a general obligation to extradite orprosecute with respect to international
offences.13 The most it can be said about
aut dedere aut judicare is that it constitutes
a “general principle of international law”,14
12 M.C. BASSIOUNI & E.M. WISE, AUT DEDEREAUT JUDICARE: THE DUTY TO EXTRADITE ORPROSECUTE IN INTERNATIONAL LAW 22-26,
5 1 -53 (1996).
13 J.J. LAMBERT, TERRORISM AND HOSTAGES IN
INTERNATIONAL LAW 190 (1990).
14 BASSIOUNI, EXTRADITION, supra note 7, at 9.

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RESOURCE MATERIAL SERIES No. 57
although some authors go further byarguing that it belongs to the jus cogens
norms.15 The latter proposal would meanthat this principle is an overriding or“peremptory” norm which cannot be set
aside by treaty. The consequences of sucha proposal might be quite dramatic: if every
state under any circumstances had thisalternative obligation (either to surrenderor to prosecute) treaty stipulations
notwithstanding, that would invalidate
both international instruments providing
exclusively for “dedere” and treaties
providing for the extradition of nationals.16
In his dissenting opinion in the Lockerbie
c a s e , J u d g e We e r a m a n t r y i n h i scharacterization of this principle as a “ruleof customary international law” seems tohave equated it with the proposition thata state is entitled “to try its own citizens in
the absence of an extradition treaty”.17 In
this sense, the principle is “an important
facet of a State’s sovereignty over its
nationals”.18 However, the proposition that
there is no duty, absent treaty, to extradite
nationals whom a state is prepared to try
itself can be relevant only in the face of an
obligation to surrender. But, as thepractice of contemporary international law
demonstrates, there is no duty to extradite
in the absence of treaty.19

The uncertainties surrounding thestatus of this principle under internationallaw directly affect both the scope of its
application and its effectiveness.
Practically, the alternative obligation ofstates either to surrender or to prosecute
exists insofar as has been expressly spelled
out in an international instrument or, only
exceptionally, in the domestic legislation.
It has been a standard policy to have theprinciple aut dedere aut judicare included
in general extradition treaties, either
bilateral or multilateral,20 especially withrespect to the refusal of surrender ofnationals.21 In addition, such a stipulation
appears in almost all conventions aimed
at defining international offences as well
as securing international cooperation in the
suppression of such acts.22 It is feared thatan unrestricted, or absolute, principle aut
dedere aut judicare might imply that allstates are obliged to prosecute any offence
committed in any place by any person
found in their territory, unless an offenderis extradited.23
All the difficulties concerning the scopeof application and the contents of an
obligation envisaged by various formulasin which this principle appears
notwithstanding, the validity of the system
based on aut dedere aut judicare has been
confirmed not only in numerous
international instruments, but also indomestic jurisprudence in many states.

15 BASSIOUNI & WISE, supra note 12 , at 25.
16 E.M. Wise, The Obligation to Extradite or Prosecute,

27 Israel L. R. 268, 280 (1993).
17 Questions of Interpretation and Application of the1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, Order of
14 April 1992. I. C. J. Reports 1992, 50 at 51.
18 Ibid., at 69.
19 H .
WHEATON, ELEMENTS OF
INTENIRATIONAL LAW 188 (5th ed. 1916).
20 I .
SHEARER, E.XTRADITION IN
INTERNATIONAL LAW 116-117, 124-125 ( 1971).

74

21 See the formula recommended for inclusion inbilateral treaties which appears in Article 4 of theUnited Nations Model Treaty on Extradition, G.A.
Res. 45/116, U.N. Doc. A Res/45/116 (1991).
22 For a list of such conventions, see BASSIOUNI &WISE, supra note 12, at 75-287.
23 See e.g. N. Keijzer, Aut dedere aut judicare, in
NETHERLANDS REPORTS TO THE XIthI N T E R N AT I O N A L C O N G R E S S O FCOMPARATIVE LAW 412 (H.U. JESSURUND’OLIVEIRA ed. 1982).

114TH INTERNATIONAL TRAINING COURSE
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For example, the Austrian Supreme Court
held that where the extradition of anational has been refused “the right toprosecute must, as a general rule andwithout prejudice to the continued
existence of the right to prosecute of theState in whose territory the offence has
been committed, be offered to the home
State of the offender”.24 On some occasions,the principle aut dedere aut judicare isrelied upon to demonstrate that it works“both ways”. In the Pesachovitz case where
an extradition request was submitted to
the Israeli authorities under the European
Convention on Extradition, the court
assuming that Israel is obligated to do one
of two things: either to extradite
Pesachovitz or to punish him25 decided toorder the extradition the fugitive on the
grounds that prosecution was precluded
under Israeli law.26
B. Hierarchy of obligations or amatter of discretion?
One of the most intriguing and delicate
questions in the context of the principle aut
dedere aut judicare is whether bothalternative obligations embodied in thismaxim are placed on equal footing. If thatwas the case, then the requested state, thatis, the forum deprehensionis, would have acompletely free choice as to whichalternative it will elect to pursue. On theother hand, it could be argued that dedere
and judicare are not really equalalternatives to the effect that the duty to
extradite should be regarded as primary,
24 Service of Summons in Criminal Proceedings(Austria Case), 21 February 1961, 38 I.L.R. 133,
Ö.J.Z. 95 (1961) at 134
25 European Convention on Extradition, 1957, E.T.S.
No. 24, Article 6.
26 Criminal Appeal 308/75, Supreme Court Decisionof 21 March 1977, Israeli Law Reports (1977), vol.
31, II, p.449. See also C. Shachor-Landau, Extraterritorial Penal Jurisdiction and Extradition, 29
Int’l & Comp. L. Quarterly 274-279 (1980).

with the duty to prosecute arising only if
the domestic legislation contains a bar to
extradition. A corollary of the latter
proposition is a view that the state locidelicti commissi has the primary
responsibility to prosecute and punish theoffender, whereas the prosecuting
authorities and courts of the custody state,i.e. the country in whose territory an
offender has been found, have only asecondary duty. Such a conclusion could
be based on several treaty stipulations anddomestic laws making judicare conditionalon: (1) the submission of the extradition
request; (2) the refusal of surrender, and(3) the requesting state’s specific demandthat the case be submitted to the competentauthorities of the requested state for the
purpose of prosecution.
The rationale for an a priori hierarchyof the alternative obligations embodied in
the principle aut dedere aut judicare withextradition being preferred overprosecution, seems to be grounded in threeconsiderations: first, the state where theoffence was committed, has the primaryinterest in seeing the offender brought tojustice; second, in most cases, mainly due
to the evidentiary issues, the forum delicti
commissi is the most convenient place forinvestigation, prosecution and trial; third,
there may be cases where prosecution in
the forum deprehensionis will appear to beineffective or unfair. Although it is argued
that “whenever possible, extradition shouldtake priority, at least in cases in which therequesting state asserts territorial
jurisdiction over the offence”,27 the formulacontaining the principle aut dedere aut
judicare that can be found in almost all
multilateral conventions prescribing
international crimes as extradition
treaties, is formulated in such languagethat does not seem to accord any special
priority to extradition. A purely theoretical
27 BASSIOUNl & WISE, supra note 12, at 57.

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RESOURCE MATERIAL SERIES No. 57
attempt based on an interpretative
distinction between “alternative” or“disjunctive” and “co-existent” obligation toprosecute or extradite does not seem to be
successful in this context either.28
Thus, it is submitted that, absent treaty
stipulation to the contrary, the present
status of this principle does not warrant anassertion that judicare is “subordinated” todedere to the effect that the requested state’s
first obligation is to deliver up the offendersought, and that it is allowed to instituteits own criminal proceedings only after it
has showed that extradition is prohibitedon legal grounds. 29 However, one
qualification has to be put on this
proposition: efforts must be made to solve a
problem that comes up in a situation where
an offender holds the citizenship of therequested state, while at the same time, theinvestigation, prosecution and trial in the
territory of that state appears to be notmerely inefficient, but simply impossible forpractical, evidentiary and political reasons.
In the henceforth international practice,
the only attempt to effectively end theensuing stalemate (and the total
frustration to criminal justice as well) has
been made in a concerted action by thegovernments of the United States and theUnited Kingdom in the Lockerbie case.
Frustrated by Libya’s refusal to extradite
its two nationals suspected of having blown
up Pan Am Flight 103 over Lockerbie,
Scotland, and determined not to submit all
the evidence that have been gathered as aresult of the three-year extensive
28 BASSIOUNl, EXTRADITION, supra note 7, at 10.
29 In essence, this was the position Libya held in the

Lockerbie case. See e.g. Letter dated 18 January
1992 from the Permanent Representative of the
Libyan Arab Jamahiriya to the United Nations
Addressed to the President of the Security Council,
reprinted in 31 I.L.M. 728-729 (1992).
30 See UN Doc. A/46/825; S/23306; 31 Dec.1991. 75

76

investigation, the United States and theUnited Kingdom (joined by France)
presented the case before the UN Security
Council and the General Assembly.30 In
January and March 1992, the Security
Council adopted two resolutions in thismatter: the first was urging Libya to
respond fully and effectively to therequests31 of the United States, the United
Kingdom and France,32 while the second
imposed economic sanctions on Libya.33
Libya brought the case before theInternational Court of Justice seeking
provisional measures to prevent the UnitedStates or the United Kingdom from taking
any action to coerce Libya into handing
over the two suspects or otherwise
prejudice the rights claimed by thatcountry. 34 On April 14, 1992, the Court
declined (by a vote of 11 to 5) to indicate
31 The requests consisted of the following demands:

to•surrender for trial all those charged with thecrime; and accept responsibility for the actionsof Libyan officials;• disclose all it knows of this crime, including
the names of all those responsible, and allow
full access to all witnesses, documents andother material evidence, including all theremaining timers;• pay appropriate compensation.” See , U.N. Doc.
S/23308 (1991).
32 S.C. Res. 731 (1992) 21 Jan. 1992.
33 S.C. Res. 748 (1992) 31 March 1992. In 1993, theSecurity Council adopted a further resolution
extending previously imposed sanctions on Libya.
See S.C. Res. 883 (1993) 11 Nov. 1993.
34 Questions of Interpretation and Application of the1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States of America), provisional Measures,
Order of 14 April 1992, I.C.J. Reports 1992 at 114.
Questions of Interpretation and Application of the1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom)), provisional Measures, Order of
14 April 1992, I.C.J. Reports 1992 at 3.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the provisional measures thereby
confirming the validity and binding force
of Resolution 748.35 The following threeinterpretations of the of the U.N. Security
Council involvement in the Lockerbie caseare possible:(a) L i b y a f a i l e d t o d e m o n s t r a t econvincingly that it is capable offulfilling the obligation which it
claimed under the Montreal
Convention, that is, to make a goodfaith effort to prosecute the crimes
itself.
(b) The resolutions signal a substantial
loss of faith in the Montreal
Convention’s authority and efficacy
in bringing the offenders to justice.
(c) The Security Council offered an
extraordinary remedy which, while
upholding the existing extradition
system, at the same time,
supplemented it with the recourse tothat organ for intervention in
exceptional situations, especiallywhere the traditional treaty model
proves unworkable.
The latter seems to be the mostpersuasive. The Court’s ruling means that
under Article 103 of the U.N. Charter the
Resolution 748 takes precedence over any
other international agreement, including
the Montreal Convention. In one sense, thegenuine choice between extradition andprosecution has been brought down to analternative: extradite or extradite. On theother hand, given the U.N. Charter ’s
Chapter VII exceptions to Article 2(7), thesecurity Council has the authority todetermine whether a situation is so severethat it constitutes a threat to the peace, abreach of the peace, or an act of aggression.
Therefore, the Security Council has theauthority to take up such matters. In orderto reconcile both the Security Council
35 Ibidem para. 39.

resolutions and the decision of theInternational Court of Justice in the
Lockerbie case, it was suggested that theinternational extradition law has not been
violated or altered because in exceptional
cases, “the law merely operates at a different
level through the internationally sanctioned
ways and means of the United Nations”.36
It is doubtful, however, whether Lockerbie
could and should be viewed as the mostappropriate mechanism designed to end thestand-off in other similar cases. Rather, it
is submitted that in seeking the solution, arigid approach should be abandoned infavour of a more flexible one which, in turn,should be based on modifications to judicare,so that it can constitute a viable option
which, more importantly, would be
acceptable also to the requesting state. Sucha system, called “substituting prosecution”,
was proposed by the Institute ofInternational Law in 1981:
1. “ T h e s y s t e m o f s u b s t i t u t i n gprosecution should be strengthened
and amplified.
2. T h e s y s t e m o f s u b s t i t u t i n gprosecution should be completed by
stipulating detailed methods of legal
assistance.
3. W h e n g o v e r n m e n t s a c t s i n
substituting prosecution, theinterested governments-and inparticular the government of theterritory in which the offence wascommitted-should be entitled to send
observers to the trial unless serious
grounds, in particular with respect tothe preservation of State security,
would justify their non-admittance.
4. In cases of substituting prosecution, if
the tribunal concerned determines that
36 C.C. Joyner & W.P. Rothbaum, Libya and the Aerial

Incident at Lockerbie; What Lessons forInternational Extradition Law?, 14 Mich. J. Int’lL. 222, 256 (1993).

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RESOURCE MATERIAL SERIES No. 57
the accused is guilty, an appropriate
penalty should be imposed, similar tothat which would be applied tonationals in a cognate case”.37
Instead of having a fixed hierarchy ofalternative obligations embodied in theprinciple aut dedere aut judicare, it is moredesirable to base the decision whether toprosecute, or not to prosecute in therequested country and surrender the
person sought, on mutual consultations
between the appropriate authorities of thestates involved. There may be cases inwhich it will be preferable for an accused
to be tried in a foreign state rather than in
his home country. The problem becomeseven more delicate where an offence wascommitted in the territory of both therequesting and the requested states, bothof which are, therefore, entitled to claim
jurisdiction based on the principle ofterritoriality. A general and rigid rule ofrefusing to extradite nationals in suchcases would reduce the effectiveness of
extradition as a major tool in combatting
transnational crime. To allow theparticular circumstances of each case being
given due consideration in the process ofmaking a decision regarding the principle
aut dedere aut judicare, one of theCanadian courts suggested that thefollowing factors should be included:• where was the impact of the offence
felt or likely to have been felt;• which jurisdiction has the greatest
interest in prosecuting the offence;• which police force played the majorrole in the development of the case;• which jurisdiction has laid charges;• which jurisdiction has the mostcomprehensive case;• which jurisdiction is ready to proceed

to trial;• where is the evidence located;• whether the evidence is mobile;• the number of accused involved andwhether they can be gathered
together in one place for trial;• in what jurisdiction were most of theacts in furtherance of the crimecommitted;• the nationality and residence of theaccused;• the severity of the sentence theaccused is likely to receive in eachjurisdiction.38
Moreover, due regard should be also
given to the question as to whether
prosecution would be equally effective inthe requested state, given its domestic law
and international instruments for thecooperation in criminal matters.39
No matter how persuasive andreasonable such recommendations are,they seem to be much easier to follow by
the common law countries. It is more thandoubtful whether they can become equallyattractive and compelling for countries
whose domestic legislation has
traditionally opposed the idea of
extradition of their own nationals. For
example, narcotic offences involving
Colombians have often been committed in
Colombia but the effects of these crimes
have been felt in the United States andhave constituted crimes under UnitedStates law. In such instances the UnitedStates may have the greater interest in theprosecution of the crime, especially if thecrime did not cause much injury in
Colombia. However, it is rather unlikelythat this argument is powerful enough toconvince the Colombian government and
38 Swystun v. United States of America (1988), 40

37 Resolution adopted by the 12th Commission at its

session in Dijon. See 59 Institute of Int’l L.
Yearbook 176-177 (1981).

78

C.C.C. (3d) 222, 227-228 (Man. Q.B.).
39 United States v. Cotroni (1989), 48 C.C.C. (3d) 193,

194 (S.C.C.).

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
legislature that they should lift the ban on
extradition of nationals.
C. Practicality of prosecution in lieu
of extradition
Practical problems in fulfilling its
obligation under judicare do not necessarily
have its source in the lack of good will on
the part of the requested state. Rather, theimpunity of an offender and the frustrationof justice should be viewed as a result of
their inability to break with the rule of nonextradition of nationals, on the one hand,
and to overcome difficulties inherently
involved in prosecuting and punishing
offenders for crimes committed abroad, on
the other hand. Admittedly, in someinstances the requested country may be
unwilling or unable, because of legal or otherreasons, to prosecute its national whose
extradition has been requested by anotherstate. Moreover, even when the requested
state institutes criminal proceedings,
problems may arise. At the least, the refusal
to extradite may strain relations between
the requesting and the requested states.
Furthermore, the former may believe, andthe facts may in some instances support thisbelief, that the latter will inadequately
pursue the prosecution, with the result thatthe accused will be acquitted or will receive
a too lenient sentence.40 In 1938, the UnitedStates Secretary of State Hull complainedthat “such punishment as has been inflicted
upon nationals of other countries in the own
lands for offenses committed in the UnitedStates has, in general, been much lighter
than the offenses committed appeared to
warrant, and in many cases no punishimentas all has been inflicted and the trials held
have resulted in acquittals”41. Much earlier,
Lewis held that since a government has notsubstantial interest in punishing crimes
committed in the territory of another state,prosecution and trial in such cases will be
conducted in a “careless, indifferent andintermittent manner”.42

Even where the competent authoritiesof the requested state have instituted
criminal proceedings against the nationalof that country whose extradition was
refused, frequently they cannot to carrythem out because to pursue theirinvestigation they need evidence which,obviously, can only be found in the territoryof the requesting state where the offence
was committed. The latter, however, iseither not in a position or unwilling to put
such evidence at the disposal of therequested state. Worse still, the problem
may not always be satisfactorily corrected
through the use of mutual (legal) assistancefor it may be precluded on the grounds ofordre public, especially where the stateseeking such an assistance exercises its
own inherent criminal jurisdiction over an
offence.43 Even to the extent that seeking
evidence abroad is legally possible, that
operation creates three types of problems:
first, bringing witnesses from distantcountries imposes a heavy financial burden
on both them and the accused, not tomention serious practical difficulties;
second, some evidence are not available atall, such as the viewing of the scene of the
40 See M.P. Scharf, The Jury Is Still Out on the Needfor an International Criminal Court, l Duke J.
Comp. & Int’l L. 135, 151-152 (1991).
41 Secretary of State Hull to Robert W. Rafuse, letter,
April 20, 1938, MS. Department of State, file200.00/893. See 6 WHITEMAN, DIGEST 883. Hulladmitted that there may be “the tendency, perhaps
natural, to refrain from punishing a fellow
countryman for an offense he committed in a distantcountry and as to which there may be in the mindsof his fellow countrymen who pass in judgment
upon him a feeling that there may have been
extenuating circumstances”. Id.
42 LEWIS, FOREIGN JURISDICTION AND THE
EXTRADITION OF CRIMINALS 30 (1859).
43 See P. Wilkitzki, Inclusion of the principle “autdedere aut judicare” in the European Convention
on Extradition, in EUROPEAN COMMITTEE ON
CRIME PROBLEMS PC-OC 9 (1987).

79

RESOURCE MATERIAL SERIES No. 57“revamping” has met with skepticism 45
Generally, government declarations andtreaty (convention) stipulations
notwithstanding, prosecution of nationals
in lieu of extradition is viewed as a sort of“second class” criminal proceedings, 46
although this was not always the case.47

crime; third, if the evidence were taken
abroad the court might have troubles to usethem at the trial due to possible procedural
restrictions on such evidence. To overcome
the latter impediment, the law of evidence
would have to be substantially changed,
especially in the common law countries.44
However, the possibility of such a

IV. APPROACHES TO THE PRINCIPLE AUT DEDERE AUT JUDICARE"Traditional"I
ratione criminis(offences)
Scope of
Application ratione exceptionis(grounds for refusal)
Nature of the
Stipulation

Applicability

ProposedII
limitedunrestrictedunrestrictedunrestricted

limited to one

limitedoffence-related(derivative of
the gravity anddefinitionof an offence)nationalityrelated

grounds-forrefusal-related(logical supplementof the duty to
extradite)prior state's jurisdiction
as a precondition• Prosecution• TrialScope of "judicare"

Ne bis in idem

no"self-executing"• prosecution• trial• enforcement ofa sanction (autdedere aut
poenampersequi)yes

44 For example, in Israel it was proposed that evidence

lawfully taken abroad should be accepted as prima
facie evidence and that the court should not allow
the examination of the witnesses for theprosecution, unless the accused had requested thatsuch an examination be held and had establishedto the satisfaction of the court that it was requiredin order to prevent a denial of justice. See T. Meron,Non-extradition of Israeli Nationals andExtraterritorial Jurisdiction: Reflections on Bill No.
1306, 13 Is. L. R. 215, 221 (1978).

80

45 See e.g. M.D. Gouldman, Extradition from Israel,

Michigan Yearbook of Int’l Leg. Studies 173, 198(1983); Cotroni, supra note 39, at 224.
46 See E.A. Nadelmann, The Evolution of UnitedStates Involvement in the International Renditionof Fugitive Criminals, 25 N. Y. U. J. Int’l. L. &Politics. 813, 856 (1993).

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

1. “Offence-oriented approach”
The traditional, “offence-oriented”,
approach has been widely applied in
multilateral conventions prescribing
international crimes. Typically, thesolution adopted in those instruments
consists of two provisions which are ofinterest here. The chronologically first one
either confers a jurisdictional competenceon the signatory states to prosecute therespective offence or obliges them toestablish such a jurisdiction. The
jurisdictional clause is usually followed bya separate stipulation on the principle aut
dedere aut judicare.

jurisdictional “component” of this system
is intended to secure the possibility for thecustodial state to fulfil its obligation to
extradite or prosecute by opting for thesecond alternative with respect to such anindividual. This alternative for thecustodial state consists of the prosecutionof that individual by its competent national
authorities in a national court. It ismeaningful only to the extent that the
courts of the custodial State have thenecessary jurisdiction over the crimes set
out in the particular instrument to enable
that state to opt for the prosecution
alternative. Failing such jurisdiction, thecustodial state would be forced to accept
any request received for extradition which
would be contrary to the alternative natureof the obligation to extradite or prosecute
under which the custodial state does nothave an absolute obligation to grant arequest for extradition. Moreover, thealleged offender would elude prosecution
in such a situation if the custodial state
did not receive any request for extradition
which would seriously undermine thefundamental purpose of the aut dedere aut
judicare principle, namely, to ensure theeffective prosecution and punishment ofoffenders by providing for the residual
jurisdiction of the custodial state.

As regards national court jurisdiction,
the former provision can be seen as acorollary of the former which establishes
the obligation of a state party to extraditeor prosecute an individual who is allegedly
responsible for the crime defined in theconvention. In this regard, theOne of the new examples of the “offenceoriented approach” to this principle isrepresented by the DRAFT CODE OF
CRIMES AGAINST THE PEACE AND
SECURITY OF MANKIND, adopted by theInternational Law Commission at its 48th
session in 199648.

47 In 1910, the British Foreign Office advised the48 Report of the International Law Commission on the

United States’ Ambassador that “according to theexperience of His Majesty’s Government, the resultof the prosecution of foreign subjects by their own
Governments in lieu of surrender to this country
has been, generally speaking satisfactory”. Foreign
Office to Mr. Whitelaw Reid, 25 July 1910, F.O. 372/
262.

work of its 48th session, U.N. G.A. Official Records
51 st session (A/51/10) at 14. See also T.L.H.
McCormack, G.J. Simpson, The International Law
Commission’s Draft Code of Crimes against thePeace and Security of Mankind: An Appraisal of
the Substantive Provisions, 5 Crim. L. Forum 1(1994).

A. Traditional approaches
Generally, from the available legislative
pronouncements and treaty stipulations,two basic approaches to the principle aut
dedere aut judicare can be discerned: one
is based on an inseparable link between
duty to prosecute and the offence as definedin the international instrument while theother relates this duty to the grounds forrefusal: only one has been singled out, i.e.
the nationality of the requested person, as
a relevant and appropriate basis for thisobligation. The former can be called the“offence-oriented approach” and the latterthe “offender-oriented approach”.

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RESOURCE MATERIAL SERIES No. 57
Article 9 - Obligation to extradite orprosecuteWithout prejudice to the jurisdictionof an international criminal court, theState Party in the territory of which
an individual alleged to havecommitted a crime set out in articles
17, 1 8, 19 or 20 is found shall extraditeor prosecute that individual.
The crimes defined in the Draft Code are:aggression (Article 16), genocide (Article17), crimes against humanity (Article 18),
crimes against United nations andassociated personnel (Article 19), and war
crimes (Article 20).
The obligation to prosecute or extradite
is imposed on the custodial state in whose
territory an alleged offender is present.
The custodial state has an obligation totake action to ensure that such anindividual is prosecuted either by thenational authorities of that state or byanother state which indicates that it iswilling to prosecute the case by requesting
extradition. The custodial state is in aunique position to ensure theimplementation of the present Code byvirtue of the presence of the alleged
offender in its territory. Therefore thecustodial state has an obligation to takethe necessary and reasonable steps toapprehend an alleged offender and toensure the prosecution and trial of such anindividual by a competent jurisdiction.
The custodial state has a choice between
two alternative courses of action either ofwhich is intended to result in theprosecution of the alleged offender. The
custodial state may fulfil its obligation by
granting a request for the extradition of analleged offender made by any other state
or by prosecuting that individual in its
49 Convention for the Suppression of Unlawful Seizureof Aircraft, December 16, 1970, 860 U.N.T.S. 105.

82

national courts. Article 9 does not givepriority to either alternative course ofaction. The custodial state has discretion
to decide whether to transfer the individual
to another jurisdiction for trial in response
to a request received for extradition or totry the alleged offender in its national
courts. The custodial state may fulfil its
obligation under the first alternative by
granting a request received for extradition
and thereby transferring to the requestingstate the responsibility for the prosecutionof the case. However, the custodial state is
not required to grant such a request if it
prefers to entrust its own authorities withthe prosecution of the case.
This kind of approach to the principle
aut dedere aut judicare has been adopted
in the 1970 Hague Convention for the
Suppression of Unlawful Seizure of
Aircraft 49 and several international
instruments patterned after it. The
Convention does not subordinate the duty
to prosecute to the requested state’s rulesof competence regarding theextraterritorial jurisdiction. The obligation
to prosecute arises whenever the
extradition is not granted:
Article 7“The Contracting Party in the
territory of which the alleged offenderis found shall, if it does not extradite
him, be obliged, without exception
whatsoever and whether or not theoffense was committed in its territory,
to submit the case to its competentauthorities for the purpose ofprosecution. Those authorities shalltake their decision in the samemanner as in the case of any ordinary
offense of a serious nature under thelaw of the that state”.
This mechanism for the implementationof the rule aut dedere aut judicare has been
replicated in several subsequent

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
conventions for the suppression ofinternational offences concluded under the
auspices of the United Nations or its
specialized agencies50. The following two
variants of the Hague Convention formulacan be discerned:a) the alternative obligation to submit acase for prosecution is subject, where aforeigner is involved, to whether a state has
elected to authorize the exercise of
extraterritorial jurisdiction51;b) the obligation to submit a case forprosecution only arises when a request for
extradition has been refused52.
2. “Offender-oriented approach”
The other traditional approach the“offender-oriented approach”, presupposesthat the scope of application of the principle
aut dedere aut judicare should not belimited to the most serious international
crimes; instead it should encompass all
extraditable offences. This approach
focuses on the situation where therequested state refuses to surrender its
own nationals and perceives such a caseas extremely frustrating to the wholesystem of international extradition. To
avoid the most blatant abuses whereby
that state might take advantage of thisexception in order to grant protection

against punishment to its citizens, it is only
logical to demand from that state that it
institute the criminal proceedings against
the requested persons and subject them toits domestic criminal justice system. In
this approach, it is not the offence thatmatters and is decisive - it is the offenderhimself that is the “triggering element” forthe mechanism aut dedere aut judicare.
Examples of this approach can be foundin both multilateral conventions andbilateral treaties on extradition. The 1957
European Convention on Extradition 53
provides one of them. Its Article 6,paragraph 1 (a) confers on the contracting
states a right to refuse extradition of theirnationals. Consequently, paragraph 2 ofthis article stipulates that:“If the requested Party does notextradite its national, it shall at therequest of the requesting Party submit
the case to its competent authorities
in order that proceedings may be taken
if they are considered appropriate. For
this purpose, the files, information andexhibits relating to the offence shall betransmitted without charge by themeans provided for in Article 12,
paragraph 1. The requesting Party
shall be informed of the result of its
request”.

50 By way of example, the following instruments canbe mentioned: Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation,
1971, 974 U.N.T.S. 177 (the Montreal Convention);
Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons,
Including Diplomatic Agents, 1973, 1035 U.N.T.S.
167 (the New York Convention); International
Convention Against the Taking of Hostages, 1979,
18 I.L.M. 1456 (1979).
51 United Nations Convention Against Illicit Trafficin Narcotic Drugs and Psychotropic Substances,
1988, 28 I.L.M. 493 (1989), Article 6, paragraph 9.
52 See e.g. the European Convention on the Suppressionof Terrorism, 1977, E.T.S. No. 90, Article 7.

Some bilateral treaties also containprovisions to the same effect. For example,
Article 44(a) of the 1992 Treaty on Legal
Assistance in Criminal Matters, Transfer ofSentenced Persons and Extradition 54
between Poland and Egypt has beenmodelled on the European Convention on
53 E.T.S. No. 24. See also Explanatory Report on theEuropean Convention on Extradition, Council ofEurope 1969 at 17.
54 The Treaty was signed on May 17, 1992, andentered into force on February 20, 1993 (DZ.U.
[Journal of Laws, Polish] of 1994, No. 34, Item 129).

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RESOURCE MATERIAL SERIES No. 57
Extradition. Also the United Nations Model
Treaty on Extradition incorporated a clauseformulated along the similar lines55.
3. A compromise position
A variant formula has been worked out
by drafters of some international
conventions which represents a compromise
between the two approaches referred tobefore. The “middle position” takes accountof differing views among states on whether
the exercising criminal jurisdiction overoffences committed abroad is proper, useful,and reasonable, the extradition
notwithstanding. The compromise formula
allows the states involved to consider andevaluate such factors.
This formula was adopted in the 1929
Convention for the Suppression ofCounterfeiting Currency56 whose drafters
abandoned the rigid clause embodied in theinternational instruments discussed above
under A, and favored a more flexible solution
which confers, to a certain extent, a
discretion on the requested state withrespect of exercising its jurisdiction toprosecute in lieu of extradition. To
accommodate both the variety of views andthe discretion, two different procedures havebeen provided for depending on thenationality of the requested person. If that
person is a national of the requested stateand his status is the only ground for refusalof his surrender, that is, if there are no otherobstacles to extradition, Article 8 provides
that he “should be punishable” in his homecountry for an offence committed abroad.
On the other hand, the Convention has
imposed a slightly diminished burden on therequested state with respect to foreigners.

They “should be punishable” for offences
committed outside the borders of therequested state only if it has been
established that the domestic law of thatcountry “recognizes as a general rule theprinciple of prosecution of offences
committed abroad” (Article 9).
Furthermore, the obligation to prosecute isconditioned on two other circumstances:
first, the extradition request has been
submitted by another state; second, thegrounds for refusal are not offence-related57.
B. Proposed approach
The mechanism for the implementationof the principle aut dedere aut judicare
envisioned by the new approach can becharacterized as follows:
1. The scope of application of thisprinciple ratione criminis should
remain unrestricted to the effect thatthe duty to prosecute should arise withrespect to all extraditable offences.
2. The scope of application ratione
exceptionis should be limited to certain
grounds for refusal of extradition
where, after a careful analysis, it isboth realistic and reasonable to expect
the requested state to institute andconduct criminal proceedings in thecase at hand. In making thisassessment, two sets off actors have tobe taken into account: first, therationale behind each ground forrefusal, especially any political over-or
undertones; second, the legislative
enactments, most notably theconstitution, in the requested state
pertaining to the admissibility of thecriminal prosecution.
57 Article 9

55 United Nations Model Treaty on Extradition, G.A.

Res. 45/1 1 6, U.N. Doc. A/Res/45/1 16 (1991).
56 International Convention for the Suppression ofCounterfeiting Currency, April 20, 1929, 112
L.N.T.S. 371.

84

“The obligation to take proceedings is subject to thecondition that extradition has been requested andthat the country to which application is madecannot hand over the person accused for somereason which has no connection with the offence”.

114TH INTERNATIONAL TRAINING COURSE
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3. While the typical stipulation of thisprinciple rooted in the traditional
approach can be seen as a derivative of
the gravity and the definition of an
offence the new approach postulates
that the rule is a logical supplement of
the duty to extradite.
4. As opposed to the existing system
under which the requested state’s
criminal jurisdiction and “judicare” aretreated not only as two separate
elements but, more importantly, as theformer being a necessary precondition
for the latter, the new approachsuggests that stipulation of theprinciple aut dedere aut judicare itself
constitute sufficient jurisdictional basis
for the competent authorities of therequested state to prosecute and punish
the offender. In a sense, the proposedmechanism would be similar to thesystem of the socalled “vicarious
administration of Justice”58 based on
the “principle of representation”59.
5. The “judicare” option should beinterpreted in functional and notstrictly legal (“legalistic”) terms.
Consequently, the meaning of thisalternative should not be limited to twostages of the criminal process, i.e.
prosecution and trial. The requested
state should be allowed to fulfill its
obligation under the rule aut dedere aut
judicare by undertaking to enforce thefinal sentence imposed on the offender
whose extradition was requested. This
rule should, therefore, be supplemented
by a new clause: aut dedere aut poenam
persequi60.
6. Last but not least, all the efforts
towards treaty and legislative
regulation of the principle aut dedere
aut judicare notwithstanding, the rule
is at present an “open end concept”. A
crucial element is missing which would
make this mechanism fully operational
and, at the same time, considerably
contribute to this principle being
treated seriously; this is the rule ne bis
in idem as the most logical consequenceof both prosecution and trial (sentence).
The inclusion of the protection against
double jeopardy in this context 61 isrequired not only by the need to secure
the effectiveness of this system but also,
a n d m o r e i m p o r t a n t l y, b y t h econsiderations of human rights, world
public order, and the most fundamental
notions of justice. As the Romans used
to say: finis coronat opus. This“finishing touch” on the principle aut
dedere aut judicare is overdue62.

58 See J. Meyer, The Vicarious Administration of

Justice; An Overlooked Basis of Jurisdiction, 31
Harv. J. Int’l L. 108-116 (1990).
59 The basic elements of this principle have been
adopted in the 1972 European Convention on theTransfer of Proceedings in Criminal Matters,
Articles 2 and 3, E.T.S. No. 73. Se also S.Z. Feller,
Jurisdiction Over Offences with a Foreign Element,in 2 TREATISE ON INTERNATIONAL CRIMINALLAW 34-37 (BASSIOUNI & NANDA eds. 1973); D.
OEHLER, INTERNATIONALES STRAFRECHT
497-518 (2nd ed. 1983).

60 See PLACHTA, TRANSFER OF PRISONERSUNDER INTERNATIONAL INSTRUMENTS ANDDOMESTIC LEGISLATION. A COMPARATIVESTUDY 191-193 (1993).
61 Similar proposal was submitted by J.E. Schutte,
Enforcement Measures in International Criminal
Law, 52 Revue internationale de droit pénal 441453 (1981).

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62 This author is fully aware that the proposed concept

may be considered a “teoria prematura” as long as
the mistrust persists in the relationships between
states, not necessarily limited to the politically,geographically, and culturally distant ones. It isquite clear that, given the lack of confidence in theadministration of justice frequently demonstrated
by the states involved in the practice of extradition,
the non-inclusion of the rule ne bis in idem in theprinciple aut dedere aut judicare is treated as an“emergency valve” which may be turned on and off
depending on whether or not the requesting stateis satisfied with the results of the requested state’s
efforts to bring an offender to justice. Also, since on
the one hand, the procedures falling under“judicare” are governed exclusively by the domestic
law of the requested state, and on the other, thestriking discrepancies between the national
legislation of various countries continue to exist, it
is understandable why the governments are
extremely unwilling to give up what might beperceived as a “final assurance” that the offender,
one way or another, will eventually be punished interms consistent with the rules and notions ofjustice as adopted in the country concerned. To
include the rule in this system, and then to
implement it, would amount to giving up hope.

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INTERNATIONAL COOPERATION IN THE
DRAFT UNITED NATIONS CONVENTIONAGAINST TRANSNATIONAL CRIME
Michael Plachta*
I. SYSTEM OF COOPERATION
A complete system of international
cooperation in criminal matters consists ofthe following forms:
1. extradition;
2. mutual legal assistance;
3. transfer of criminal proceedings;
4. recognition of foreign criminal
judgments;
5. enforcement of foreign criminal
sentences:(a) transfer of prisoners,(b) transfer of supervision of
persons conditionally sentenced or
conditionally released;(c) enforcement of other sanctions;
6. search, seizure and confiscation ofproceeds of crime.
The draft Convention against
Transnational Crime (hereinafter the “TOC
Convention”) will likely be the mostcomprehensive instrument of international
cooperation in criminal matters as it willcontain and regulate all of the above forms,
except for the transfer of supervision. On
the other hand, the degree of specificity of
the relevant provisions varies significantly.
The most general terms which are void of
any measure of obligation, have been used
to define the transfer of sentenced persons(Article 10 bis) . It provides that States
Parties “may consider” entering intobilateral or multilateral agreements, either
ad hoc or general, on the transfer to theirterritory of persons sentenced to* Gdansk University, Faculty of Law, First Vice-Dean,
Chair of Criminal Procedure, Poland

imprisonment or other forms of deprivationof liberty, in order that they may complete
their sentences there.
Similarly, Article 16 foresees merely apossibility of the transfer of criminal
proceedings: States Parties shall giveconsiderations to the possibility oftransferring to one another proceedings forthe criminal prosecution of an offence
covered by the Convention in cases wheresuch transfer is considered to be in theinterests of the proper administration ofjustice, in particular in cases where morejurisdictions are involved, with the view toconcentrating the prosecution.
Nevertheless, it should be pointed outthat the TOC Convention has a chance tobecome the most modern instrument, for
its drafters, while relying on solutions
adopted in the existing multilateralconventions, make efforts to take into
consideration and, wherever possible, toinclude new ideas, options and measures.
Of particular interest are provisions on
extradition and mutual legal assistance.
These two forms of cooperation have been
elaborated to the point that while Article
10 can be called a “mini extradition treaty”,
Article 14 has become a “comprehensive
MLAT within the TOC Convention”.
As opposed to offences covered by theConvention, the category of “offences
established under the Convention” islimited to the following four offences: (i)participation in an organized criminalgroup as well as organizing, directing,aiding, abetting, facilitating or counselling
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RESOURCE MATERIAL SERIES No. 57
the commission of serious crime involving
an organized criminal group (Article 3); (ii)laundering offences (Article 4); (iii)
corruption in the context of organized crime(Article 4 ter); (iv) obstruction of justice(Article 17 bis).

the methods, forms and measures in thefollowing areas (levels):II. WHAT’S NEW IN THE TOCCONVENTION?

In addition to that, the TOC Convention
will address the problem of prevention andthe cooperation of its signatories in thisarea.

Extradition:• simplified extradition;• strengthening of the principle aut
dedere aut judicare;• principle aut dedere aut poenam
persequi;
Mutual legal assistance:• extended scope of application,
covering legal persons;• mechanism of a spontaneouscommunication of information;• bank secrecy - no bar to granting
assistance;• limited scope of dual criminality;• transfer of persons in custody;• modem techniques of transmission ofrequests;• legal regime of the execution ofrequests;• video-link and modern means ofcommunication;• rule of speciality;• confidentiality of requests;• political and fiscal offences;• consultations.
III. COMPREHENSIVE SYSTEM OF
COOPERATION IN THE TOCCONVENTION
Another reason why the draft TOC
Convention has a potential to “make adifference” in the international system ofcooperation is its comprehensiveness. The
Convention is not limited to the traditional
forms of cooperation. Instead, it will include

88

I. judicial cooperation,
II. law enforcement cooperation,
III. technical cooperation and assistance.

The effectiveness of the new Convention
as a tool in the fight against organizedcrime will depend to a large degree on
whether the provisions on law enforcement
cooperation will really enable, facilitateand encourage police and other agencies
to undertake cooperative initiatives. Article
19 provides that the Convention may beconsidered by its Parties as the basis formutual law enforcement cooperation in
respect of any offence covered by thisi n s t r u m e n t . M o r e o v e r, w h e n e v e r
appropriate, its signatories should makefull use of agreements or arrangements,
including international (such as
INTERPOL) or regional organizations(such as EUROPOL or BALTCOM), toenhance this cooperation.
One of the forms and manifestations ofsuch cooperation are joint investigations.
However, in view of the diverging opinions
among delegations on the appropriatenessof such “ventures”, the drafters of the TOC
Convention had to proceed with caution.
They only managed to encourage States
Parties to consider, on a reciprocal basis,concluding bilateral or multilateralagreements or understandings for thispurpose; any form of obligation or even astronger language were not acceptable.
Based on such agreements or
arrangements, in cases where criminal
proceedings are being carried out in one ormore countries, the judicial authorities

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concerned may, where necessary with
police authorities, after informing thecentral authority established for the
purpose of mutual legal assistance, act
together within joint investigative bodies.
In the absence of such agreements orunderstandings, the joint investigations
may be undertaken by agreement on acase-by-case basis, In carrying out suchjoint operations, the states involved will
have to ensure that the sovereignty of thestate in whose territory the investigation
takes place is fully respected.
Another area and example of law
enforcement cooperation envisioned by the
TOC Convention are special investigativetechniques, such as controlled delivery,
electronic or other forms of surveillance orundercover operations. Here, again, States
Parties are encouraged to makeappropriate bilateral or multilateralarrangements for using such techniques in
the context of international level. Sucharrangements have to comply with and be
carried out in accordance with the principleof sovereign equality of states. It wasagreed that decisions to use such special
investigative techniques at theinternational level shall be made on a caseby-case basis and may, when necessary,take into consideration financial
arrangements and understandings withrespect to the exercise of jurisdiction by thestates concerned.
Additionally, the States Parties shalladopt effective measures to enhance and,
where necessary, to establish channels ofcommunication between their competentauthorities, agencies and services as wellas to cooperate with one another in
conducting inquiries concerning theidentity, whereabouts and activities of
persons suspected of involvement inorganized criminal groups, the movementof proceeds or property derived from thecommission of such offences, and the

movement of intrumentalities used orintended for use in the commission of suchoffences. For this purpose, in appropriate
cases and if not contrary to domestic law,
the States Parties should establish joint
teams, taking into account the need toprotect the security of persons andoperations.
Finally, the TOC Convention provides
that States Parties shall assist one anotherin planning and implementing researchand training programmes designed toshare expertise in various areas, such ascollection of evidence, modern law
enforcement equipment and techniques,
methods used in combating transnationalorganized crime committed through the useof computers, telecommunications
networks or other forms of modern
technology, detecting and monitoring of themethods used for the transfer, concealment
or disguise of proceeds derived from suchoffences.
States Parties shall promote training
and technical assistance that will facilitate
extradition and mutual assistance. Suchtraining and technical assistance may
include language training, secondments
and exchanges between personnel incentral authorities or relevant agencies.
States Parties may conclude bilateral or
multilateral agreements on material andlogistical assistance, taking into
consideration the financial arrangements
necessary for the means of international
cooperation provided for by the Convention
to be effective and for the prevention andcontrol of transnational organized crime.
States Parties shall make concrete
efforts to the extent of their capacities andin coordination with international agencies
to establish a special United Nations fund
for technical cooperation in order to provide
technical assistance to developing
countries and countries with economies in

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RESOURCE MATERIAL SERIES No. 57
transition to assist them in meeting theirneeds for the implementation of the TOC
Convention. States shall endeavour tomake adequate and regular voluntary
contributions to the fund. States Parties
shall also consider, in accordance with theirdomestic legislation, contributing to thefund a percentage of the money or of thecorresponding value of illicit assets
confiscated in accordance with theprovisions of the Convention.
An importance of the proposed
provisions on technical cooperation andassistance cannot be overestimated. Theirsignificance derives from the fact that oneof the weakest links in the system of tools
and measures to fight organized crime isthe education and training at the local
level. Public administrators who are awarethat organized crime exists in theircommunity, are not spending sufficient
time on educating and training citizens,law enforcement officers and othermembers of the criminal justice system.
Consequently, local persons with interestin curbing organized crime are left to theirown resources in securing information
about those engaged in organized crime.
There are three modus for transmitting
information to those concerned withorganized crime control. These are: (1)education in academic institutions; (2)specialized training for law enforcement
officers; and (3) greater publie cooperation.
Ideally, all three of them should be
developed as a harmonious system.
IV. SHORTCOMINGS, GAPS AND
RESTRICTIONS
A. Extradition• no provision on concurrent requests;• no provision on the extradition of
persons sentenced in absentia;• rejected proposal on political andfiscal offence exceptions - according to90

the proposal, the offences establishedunder the Convention would not be
regarded as a political offence or as
an offence connected with a politicaloffence or as an offence inspired bypolitical offence, nor as a fiscal offence;• rejected jurisdictional clause - it was
proposed that the offences establishedunder the Convention be treated, forthe purposes of extradition between
States Parties, as if they had beencommitted not only in the place inwhich they occurred but also in the
territory of the state that havejurisdiction in accordance with theprovisions adopted in the Convention;• rejected proposal aimed at extending
the scope of application of Article 10;• provision on accessory extradition;• rejected proposal regarding
consultation between the requestingstate and the requested state before
the latter refuses to surrender the
person sought;• unclear scope of the principle aut
dedere aut judicare.
B. Mutual legal assistance• repetition of clauses referring todomestie legal system (1egislation) as
well as clauses designed to protect
state sovereignty;• lack of harmonization with some otherarticles of the Convention (e.g. with
Article 24: Relation with otherconventions);• possible practical difficulties in theimplementation of the Article 14
caused by the abolition of the dual
criminality rule;• unclear final version of the provisionon the temporary transfer of persons
in custody;• controversies over the functions ofcentral authority;• traditional provision on the contents
of a request for mutual legal

114TH INTERNATIONAL TRAINING COURSE
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assistance;• unclear final version of the provision
on video link;• extended catalogue of grounds forrefusal, e.g. anti-discriminatory
clause and political offence;• unwillingness of delegations to abolishthe fiscal offence exception;• unclear final version of the provisionon the disclosure of government
records, documents or information,
available to the general public.
V. PROPOSALS ADOPTED AT THE
XVIth CONGRESS OF AIDP
The last Congress of the Association
Internationale de Droit Penal(International Association of Penal Law),
which was held in September 1999 in
Budapest, Hungary, was devoted to thefight against organized crime. Its Section
IV debated international cooperation inthis area. Below are the most pertinent
resolutions which were not only adopted,
but also addressed to the UN Ad Hoc
Committee for the elaboration of the TOC
Convention for its consideration.
A. Concurrent jurisdiction• Where more than one state has
jurisdiction to prosecute an offender
for the same offence, the choice of theforum should be made by aninternational pre-trail chamber. Thisnew body should also have jurisdiction
to decide in cases of transnationalorganized crime where two or morestates have jurisdiction and theauthorities of one of those states wish
to settle the case by means of an outof-court settlement.

B. Judicial cooperation• Dual criminality as a condition of
extradition should be retained. For
mutual legal assistance, it should bemaintained in so far as the assistanceis requested for coercive measures.
• States should adopt the“transformative interpretation
method” in interpreting thisrequirement.
• In order to make judicial assistanceeffective, the collecting of evidence inthe requested state should satisfy therequirements of the requesting state,
as long as this is not incompatible
with the fundamental principles
recognized in the requested state andthe basic rights of the defendants.
• Direct contact between the judicial
authorities of the requesting and of
the requested state is recommended.
• New technologies, such as video-links
to take evidence abroad, should be
encouraged.
• Where appropriate, it should bepossible for judges to transport
themselves to other states, not onlyin the pre-trial stage of proceedings,
but also during trial. The practice of“travelling national courts” should be
encouraged.
C. Police cooperation• Police cooperation should beformalized through international
conventions regulating recent
developments in this area, such as
new communication channels (e.g.
liaison officers), new investigative
activities (e.g. joint investigative
teams), and new technologies andtechniques (e.g. international
wiretapping, cross border observation
by satellite).

91

RESOURCE MATERIAL SERIES No. 57• International proactive policing
should abide by the principles ofl e g a l i t y 1, p r o p o r t i o n a l i t y 2 a n d
subsidiarity3. Such activities should
be monitored by the authorities incharge of criminal investigations at
the national level of the countries theparticipating police officers belong to.
• Unilateral actions on the territory of
another state (i.e. investigative or
operational actions undertaken bypolice officers without authorisationof the local authorities) should beprohibited. Evidence obtained inviolation of the local rules and/or
without proper authorisation of thecompetent local authorities should be
excluded only if the lex forum would
also require the exclusion of evidence
obtained in this manner in a purely
domestic manner.
• When police officers operate or act inwhatever capacity on foreign soil, thisshould take place only on thecondition that the foreign officers will
be under an obligation to testify incourt should they be called on to give
evidence. Foreign police officers
should have the same obligations andprivileges in proceedings before thecourts in which they are acting as thepolice officers of that country.

1 That means, proactive techniques must be based
pronouncements.
2 That means, such actions may only be undertaken
and measures used if there is sufficient reason tosuspect that serious and determined offences
relating to organized crime will occur in the near
future.
3 That means, proactive techniques may not be used
if alternative means of obtaining evidence can beapplied to detect and investigate such offences.

92114TH INTERNATIONAL TRAINING COURSE
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THE LOCKERBIE AFFAIR: WHEN EXTRADITION FAILS ARE
THE UNITED NATIONS’ SANCTIONS A SOLUTION?
(THE ROLE OF THE SECURITY COUNCIL IN THE
ENFORCING OF THE RULE AUT DEDERE AUT JUDICARE)
Michael Plachta*
I. STATEMENT OF FACTS
On December 21, 1988, Pan American
Flight 103 took off from London’s Heathrow
Airport on its transatlantic flight to John
F. Kennedy Airport in New York. At 6:56
P.M. EST, at an altitude of 10,000 meters,
the Maid of the Seas made its last contact
with ground control. Seven minutes later,
the green cross-hair at air traffic control
split into five bright blips as Pan Am Flight
103 exploded in midair. Her fiery skeleton,
laden with the bodies of passengers andcrew, rained down on the people of
Lockerbie, Scotland. Within the hour, 243passengers, 16 crew members, and 11
townspeople were dead.
Between January 1989 and November
1991, a joint USA-Scottish team tracked
down leads in fifty countries, questioned
14,000 people, and combed some 845
square miles around Lockerbie. The fruitsof their search: a shard of circuit board
smaller than a fingernail, a fragment of an
explosive timer embedded in an article ofclothing, and a few entries in a private
diary. These three pieces of physicalevidence led investigators to two Libyan
nationals, Abbel Basset Ali al-Megrahi and
Lamen Khalifa Fhimah. That country’s
involvement was apparently confirmedwith a forensic scientist’s discovery of a tiny
microchip of the bomb’s trigger mechanism.
This “technical fingerprint” was embedded
in a shirt that had come from the suitcase
containing the bomb. The most significant
link, however, came from two Libyan* Gdansk University, Faculty of Law, First Vice-Dean,
Chair of Criminal Procedure, Poland

intelligence agents arrested in Senegal in
1988. At the time of their arrest, they werediscovered carrying Semtex (plastic
explosives) and several triggering devices.
The connecting link between the Lockerbie
timer and the two Libyan suspects camefrom Fhimah’s own notebook.
Nearly three years later, the cumulative
evidence led to the indictment of the two
Libyan intelligence officers by a federal
grand jury in Washington, D.C. The 193count indictment accusing Fhimah and alMegrahi with planning and carrying out
the Lockerbie bombing represented themost extensive investigation everconducted for an act of terrorism. Handed
down on November 14, 1991, theindictment supplied the final piece of amultinational jigsaw puzzle that took three
years to complete. On the same day, asimilar indictment was handed down in the
United Kingdom.
II. LEGAL ACTION AND LIBYA’SRESPONSE
Although neither formal diplomatic
relations nor a bilateral treaty existed
between the United States and United
Kingdom, on the one hand, and Libya - on
the other, informal extradition requests
were forwarded through the Belgian
Embassy to Tripoli. Two weeks later, thetwo governments issued a joint declarationin which they demanded Libya to:• surrender for trial all those charged
with the crime; and accept
responsibility for the actions of Libyan
officials;

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RESOURCE MATERIAL SERIES No. 57•

disclose all it knows of this crime,
including the names of all those
responsible, and allow full access to all
witnesses, documents and othermaterial evidence, including all theremaining timers;
pay appropriate compensation 1.”

investigation conducted by the Libyan
authorities is of crucial importance in thiscase as the only viable alternative to
extradition (“judicare” as opposed to“dedere”) under the Montreal Conventionof 1971, this matter warrants a closer look
and a more detailed elaboration.

Libya’s response to these demands has
evolved since November 1991, taking thefollowing forms:
1. The first reaction was predictable: the
Libyan government refused to grant
extradition, asserting that such an act
constituted direct interference in
Libya’s internal affairs. At times,
Colonel Qadhafi was trying to laugh out
the whole matter.
2. After a while, Libya started its own
judicial investigation. The competentauthorities officially instituted criminal
proceedings in this case. The Libyan
examining magistrate ordered the twosuspects to be taken into custody.
3. Later on, Libya went even a stepfurther by offering to admit both the
British and American observers to the
Libyan trial, or, in the alternative, tohave the International Court of Justicedetermine which nation has the proper
jurisdiction.
4. The Libyan government has also
indicated, at various times, that it
might surrender the suspects for trial
in a “neutral” forum.
5. Finally, that government suggested
that it would not object if the twosuspects voluntarily surrender for trial
in Scotland. (After consultation with
Scottish counsel, the two suspects
apparently decided not to surrenderthemselves.)

On November 18, 1991, the Libyan
authorities issued a statement indicatingthat the indictment documents had been
received from the United States and theUnited Kingdom and that, in accordancewith the applicable rules, a Libyan
Supreme Court Justice had already been
assigned to investigate the charges. The
statement also, inter alia, asserted that
Libyan judiciary’s readiness to cooperatewith all legal authorities concerned in the
United Kingdom and the United States.

•

Since the domestic criminal
1

Statement Issued by the Government of the UnitedStates on November 27, 1991, Regarding theBombing of Pan Am 103, U.N. Doc. S/23308 (1991).

94

Ten days later, the Libyan government
issued a communiqué in which it wasstated that the application made by theUnited States and the United Kingdom
would be investigated by the competent
Libyan authorities who would deal with itseriously and in a manner that would
respect the principles of international
legality, including, on the one hand, Libya’s
sovereign rights and, on the other, the needto ensure justice both for the accused andfor the victims. In the meantime, theLibyan investigating judge took steps torequest the assistance of the authorities in
the United Kingdom and the United States,
offering to travel to these countries in orderto review the evidence and cooperate with
his American and British counterparts.
Since these offers were either explicitly
rejected in public (parliamentary debates)
or ignored, remaining without response,
two identical letter were addressed in
January 1992, to the United States
Secretary of States and the British
Secretary of States for Foreign Affairs by
their Libyan counterpart in which he

114TH INTERNATIONAL TRAINING COURSE
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pointed out that Libya, the United states,
and the United Kingdom were all parties
to the 1971 Montreal Convention2. He thenindicated that as soon as the charges had
been made against the two accused, Libya
had exercised its jurisdiction over them inaccordance with Libyan national law and
Article 5(2) of that Convention which
obligates each contracting state to establish
its jurisdiction over offences mentioned in
the Convention where the alleged offenderis present in its territory and it does notextradite him.
The letter went on to note that Article
5(3) of the Convention did not exclude any
criminal jurisdiction exercised inaccordance with national law. Recallingthe stipulation adopted in Article 7 of theConvention (aut dedere aut judicare), thetwo letters indicated that Libya had
already submitted the case to its judicial
authorities and that an examining
magistrate had been appointed. The lettersthen observed that the judicial authoritiesof the United States and the United
Kingdom had been requested to cooperate
in the matter but instead, had threatened
Libya while not ruling out the use of armed
force.
III. A STALEMATE: WHERE TO GO
FROM HERE?
Typically, under normal circumstances,the vast majority of cases in which
extradition was denied for whateverreasons, ends here - in a stalemate.
Chances for it being resolved to thesatisfaction of both (or all) of the parties
involved are close to null. This reality
makes some countries think twice before
authorizing their competent authorities tosubmit the extradition request to another2

Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation, September 23,
1971, 974 U.N.T.S. 177.

state. Some sort of practical wisdom (orpragmatic approach) suggests that this isa situation to which the popular saying “itdoesn’t hurt to ask” simply does not apply.
Instead, there is so much to loose and solittle to win. Both experience andknowledge of even the basic rules andprinciples of extradition clearly indicatethat once this mechanism is formally set
in motion it will take its own course which
represents an uneasy marriage between
law and politics. Consequently, some statesrather try to find a way around theextradition while others ignore it
altogether and resort to fait accompli
instead.
The Lockerbie case is unique in that it
did not stop where it could have stopped,
and where, possibly, it was expected tocome to the “dead end”. Interestingly
enough, both sides involved in the conflict
contributed to next stages by undertaking
further actions in this case.
Clearly, the two parties were on a
conflicting course. While Libya relied on
the codified rule of aut dedere aut judicare(Article 7 of the Montreal Convention), as
the governing principle which entitles it toprosecute its own nationals especially inthe absence of an extradition treaty, both
the American and British governments
categorically demanded the surrender of
the two suspects, and made it clear that
nothing less than an unconditional
compliance with their request will satisfy
them. While Libya declared that it will try
the accused, and invited the United States
and the United Kingdom to send theirofficials and lawyers to observe the trial,
arguing that it was thus satisfying its
obligations under the Montreal
Convention, the two other governments
demanded that the suspects be tried intheir courts. While Libya contended thatits domestic law forbids the extradition of
its nationals, the U.S.A. and the U.K.

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RESOURCE MATERIAL SERIES No. 57
denied that this is a valid excuse for notsurrendering them.

U.N. Security Council involvement in the
Lockerbie case are possible:

A. The Case: Security Council andInternational Court of JusticeDetermined not to submit all theevidence that have been gathered as aresult of the three-year extensive
investigation, the United States and theUnited Kingdom (joined by France)
presented the case before the UN Security
Council and the General Assembly.3 In
January and March 1992, the Security
Council adopted two resolutions in thismatter: the first was urging Libya to
respond fully and effectively to the requestsof the United States, the United Kingdom
and France,4 while the second imposed
economic sanctions on Libya. 5 The
sanctions were extended in 1993.6 Libya
brought the case before the International
Court of Justice seeking provisional
measures to prevent the United States or
the United Kingdom from taking any action
to coerce Libya into handing over the twosuspects or otherwise prejudice the rights
claimed by that country. 7 On April 14,
1992, the Court declined (by a vote of 11 to5) to indicate the provisional measures
thereby confirming the validity andbinding force of Resolution 748. 8 The
following three interpretations of the of the(a) L i b y a f a i l e d t o d e m o n s t r a t econvincingly that it is capable offulfilling the obligation which it
claimed under the Montreal
Convention, that is, to make a goodfaith effort to prosecute the crimes
itself.
(b) The resolutions signal a substantial
loss of faith in the Montreal
Convention’s authority and efficacy
in bringing the offenders to justice.
(c) The Security Council offered an
extraordinary remedy which, while
upholding the existing extradition
system, at the same time,
supplemented it with the recourse tothat organ for intervention in
exceptional situations, especiallywhere the traditional treaty model
proves unworkable.

3

See UN Doc. A/46/825; S/23306; 31 Dec.1991.
S.C. Res. 731 (1992) 21 Jan. 1992.
5 S.C. Res. 748 (1992) 31 March 1992
6 S.C. Res. 883 (1993) 11 Nov. 1993.
7 Questions of Interpretation and Application of the1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States of America), provisional Measures,
Order of 14 April 1992, I.C.J. Reports 1992 at 114.
Questions of Interpretation and Application of the1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom ), provisional Measures, Order of
14 April 1992, I.C.J. Reports 1992 at 3.
8 Ibidem para. 39.
496

The latter seems to be the mostpersuasive. The Court’s ruling means that
under Article 103 of the U.N. Charter the
Resolution 748 takes precedence over any
other international agreement, including
the Montreal Convention. In one sense,
the genuine choice between extradition andprosecution has been brought down to analternative: extradite or extradite. On theother hand, given the U.N. Charter ’s
Chapter VII exceptions to Article 2(7), thesecurity Council has the authority todetermine whether a situation is so severethat it constitutes a threat to the peace, abreach of the peace, or an act of aggression.
Therefore, the Security Council has theauthority to take up such matters. In orderto reconcile both the Security Council
resolutions and the decision of theInternational Court of Justice in the
Lockerbie case, it was suggested that theinternational extradition law has not been
violated or altered because in exceptional
cases, “the law merely operates at a

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different level through the internationallysanctioned ways and means of the United
Nations”.9
It is doubtful, however, whether
Lockerbie could and should be viewed as
the most appropriate mechanism designed
to end the stand-off in other similar cases.
B. Inquiry Into Other Options
1. JURISDICTIONAL level:♦ establishing of the hierarchy ofjurisdictional principles (or order ofpriorities) (apart from obvious
advantages that could be gained
through this solution it also has someinherent problems; just to mention afew: any proposed hierarchy will beperceived as an arbitrary act - unlessagreed upon in an international
instrument; if a proposition contains
clear-cut rules in an attempt to avoid
any ambiguity and eliminate discretion
and arbitrariness it may soon proveinefficient as the rules may become too
rigid and inflexible, and therefore,
unable to accommodate any set of
specific circumstances which may
appear in a case in hand; if, however,to avoid this problem, the rules would
allow some flexibility the question
immediately arise as to a body or an
organ called upon to decide in thesematters by conferring jurisdiction on
the particular state, in other words:
who would be the “keeper of the rules”?)
Examples: (Draft) Convention Benelux
concernant l’applicabilité de la loi
pénale dans le temps et dans l’espace(1979); Consultative Assembly of theCouncil of Europe, Recommendation
420 (1965) on the settlement of conflicts
9of jurisdiction in criminal matters;(Draft) European Convention on
Conflicts of Jurisdiction in Criminal
Matters, id.
2. PROSECUTORIAL and TRIAL
level:
A. Conditional Surrender (Extradition):
1. the requested state’s duty to repatriate
the sentenced person, i.e. to send him/
her back to his/her home country toserve sentence;
Example: the Dutch Extradition Law
as amended in 1988, Article 4,paragraph 2;
2. Consent of the Extraditee;
Example: the Swiss Law on
Extradition and International
Assistance in Criminal Matters of 1981,
Article 1, paragraph 1 (the consent
must be in writing);
B.
1.
2.
3.

“Neutral” Forum:
third state;international criminal tribunal;a variant: “Secretary General custody”
over the two suspects in the Lockerbie
case; It was suggested by Libya that
the Secretary General should attempt
to create some “mechanism” whereby
Resolution 731 could be implemented.

C. Transfer of Criminal Proceedings
Combined with Rendering Legal
AssistanceD. abduction or other illegal or irregularforms of apprehension of the would-beextraditee
3. ENFORCEMENT level♦ enforcement of foreign criminal
sentences

C. C. Joyner & W. P. Rothbaum, Libya and the
Aerial Incident at Lockerbie: What Lessons forInternational Extradition Law?, 14 Mich. J. Int'lL. 222, 256 (1993).

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IV. SETTING THE STAGE:
SECURITY COUNCIL RESOLUTION
1192 (1998)
The first breakthrough in bringing thesuspects to justice came at a meeting in
Tripoli in April 1998 between government
officials, lawyers and British
representatives of the bombing victims at
which the Libyans confirmed that theywould accept a plan devised by RobertBlack, professor of law at the University of
Edinburgh. His proposal involved the casebeing tried in a neutral country, operating
under Scottish law. Instead of a jury there
would be an international panel of judges
presided over by a senior Scottish judge.
While agreeing in principle to a neutral
venue Robin Cook, British Foreign
Secretary, rejected in August 1998 Black’s
proposal for an international panel andopted for an all-Scottish judges panel.
But an agreement over the venue andmake-up of the court was not the final
obstacle. A number of issues had to beaddressed and resolved before the men
would agree to leave Tripoli. These
included guarantees about their safe
custody from Libya. If they are acquitted
there will also have to be guarantees about
their safe custody back. Other questions
arose: what will the conditions of theirdetention be? what access will they haveto their legal team? how long are they
expected to remain in custody before thetrial takes place? what access will thedefence be given to the prosecution
evidence? how much time will the defence
have in order to get properly prepared?
In an effort to make the trial in Scotland(or by Scottish judges) and under Scottish
law more attractive to Libya, on 31 October
1997, the Permanent Representative of theUnited Kingdom to the United Nations
addressed a letter to the President of the
Security Council (S/1997/845) in which he98

invited representatives of the United
Nations to visit Scotland and to study the
Scottish judicial system. After consultingwith the Security Council, SecretaryGeneral Kofi Annan accepted the invitation
and requested two scholars to undertake
this study. In their report on the Scottish
judicial system, they concluded that the
Libyan accused would receive a fair trial
in Scotland (S/1997/991, Annex ). Theirrights during the pre-trial, trial and posttrial proceedings would be protected inaccordance with international standards.
The presence of United Nations and otherinternational observers can be fully andeasily accommodated.
As time passed without resolution of thematter, support for the economic sanctions
against Libya began to erode. Proposals
by Libya and by regional organizations,such as the Arab League, suggested a trialof the two suspects by international, or
perhaps Scottish, judges sitting in the
Netherlands.
In a letter addressed to the UN
Secretary-General dated August 24, 1998,
the Acting Permanent Representatives of
the United Kingdom and the United States
proposed an arrangement for a trial in the
Netherlands by Scottish judges.10 Afternoting prior assurances that had been
given regarding the fairness of a trial intheir jurisdictions and their “profoundconcern” at Libya’s disregard of the
Security Council’s demands, the two
Governments stated:
3. “Nevertheless, in the interest ofresolving this situation in a way
10 Letter Dated 24 August 1998 from the Acting

Permanent Representatives of the United Kingdomof Great Britain and Northern Ireland and theUnited States of America to the United Nations
Addressed to the Secretary-General, UN Doc. S/
1998/795 (1998).

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which will allow justice to be done,
our Governments are prepared, as an
exceptional measure, to arrange forthe two accused to be tried before a
Scottish court sitting in the
Netherlands. After close consultation
with the Government of the Kingdomof the Netherlands, we are pleased
to confirm that the Government of theNetherlands has agreed to facilitate
arrangements for such a court. It
would be a Scottish court and would
follow normal Scots law andprocedure in every respect, except for
the replacement of the jury by a panelof three Scottish High Court judges.
The Scottish rules of evidence andprocedure, and all the guarantees offair trial provided by the law of
S c o t l a n d , w o u l d a p p l y.
Arrangements would be made forinternational observers to attend thetrial.
4. The two accused will have safe
passage from the Libyan Arab
Jamahiriya to the Netherlands forthe purpose of the trial. While they
are in the Netherlands for the
purpose of the trial, we shall not seek
their transfer to any jurisdiction
other than the Scottish court sittingin the Netherlands. If found guilty,
the two accused will serve theirsentence in the United Kingdom. If
acquitted, or in the event of theprosecution being discontinued byany process of law preventing any
further trial under Scots law, the two
accused will have safe passage backto the Libyan Arab Jamahiriya.
Should other offences committed
prior to arrival in the Netherlands
come to light during the course of thetrial, neither of the two accused nor
any other person attending the court,
including witnesses, will be liable forarrest for such offences while in the
Netherlands for the purpose of thetrial.
5. The two accused will enjoy theprotection afforded by Scottish law.
They will be able to choose Scottish
solicitors and advocates to represent
them at all stages of the proceedings.
The proceedings will be interpreted
into Arabic in the same way as a trial
held in Scotland. The accused will
be given proper medical attention. Ifthey wish, they can be visited incustody by the international
observers. The trial would of course
be held in public, adequate provision
being made for the media.
6. We are only willing to proceed in thisexceptional way on the basis of theterms set out in the present letter(and its annexes), and provided that
the Libyan Arab Jamahiriya
cooperates fully by:(a) Ensuring the timely appearanceof the two accused in the
Netherlands for trial before theScottish court;(b) Ensuring the production ofevidence, including the presenceof witnesses before the court;(c) Complying fully with all therequirements of the Security
Council resolutions”.
Annexed to the letter was the proposed
agreement between the Netherlands andthe United Kingdom as well as the
proposed UK legislation. On the same day,
Secretary of State Madeleine Albrightreleased a statement in which she declared:“We note that Libya has repeatedly
stated its readiness to deliver thesuspects for trial by a Scottish court
sitting in a third country. Thisapproach has been endorsed by the
Arab League, the Organization of
African Unity, the Organization of theIslamic Conference and the NonAligned Movement. We now challenge

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RESOURCE MATERIAL SERIES No. 57
Libya to turn promises into deeds. The
suspects should be surrendered for trial
promptly. We call upon the membersof organizations that have endorsed
this approach to urge Libya to end its
ten years of evasion now.
Let me be clear — the plan the US andthe UK are putting forward is a “takeit-or-leave-it” proposition. It is not
subject to negotiation or change, norshould it be subject to additional footdragging or delay. We are ready to
begin such a trial as soon as Libya
turns over the suspects”.11
On the next day, in a letter to the
Security Council, Libya stated:
1. “Libya is anxious to arrive at asettlement of this dispute and to turnover a new page in its relations with
the States concerned.
2. Libya’s judicial authorities need tohave sufficient time to study [theproposal] and to request theassistance of international experts
more familiar with the laws of theStates mentioned in the documents.
3. We are absolutely convinced that the
Secretary-General of the United
Nations, Mr. Kofi Annan, must be
given sufficient time to achieve what
the Security Council has asked ofhim, so that any issue or difficultythat might delay the desired
settlement can be resolved”.12

11 Secretary of State Madeleine K. Albright, Statement

on Venue for Trial of Pan Am # 103 Bombing
Suspects (Aug. 24, 1998), available in <http://secretary.state.gov/www/statements/1998/
980824a.html>.
12 Letter Dated 25 August 1998 from the Charged'Affaires A.I. of the Permanent Mission of the
Libyan Arab Jamahiriya to the United Nations
Addressed to the President of the Security Council,
UN Doc. S/1998/803 (1998).

100

Nonetheless, the Security Council
passed a resolution 1192 on the matter on
August 27, 1998, in which it fully endorsed
the plan and procedure devised andproposed by the United States and theUnited Kingdom.
Throughout the fall of 1998, Libya
reacted ambivalently to the proposal, on
the one hand welcoming the “evolution” in
the U.S. and UK position, while on theother hand expressing concern about the
t r i a l ’s p r o p o s e d l o c a t i o n i n t h eNetherlands, a former U.S. air base, which
was agreed upon by the Dutch and British
Governments. The Libyan Government
announced that it would need to inspect
the location before assenting to holding thetrial there.13 In a speech to the UN General
Assembly, Libya’s ambassador to theUnited Nations criticized other aspects ofthe proposal, insisting that the accusedshould serve their sentences in either Libyaor the Netherlands — and not in Scotland— if convicted. Moreover, three top Libyan
intelligence officials reportedly were tried,
convicted, and jailed in Libya in connection
with the Lockerbie incident, possibly as ameans of blocking their testimony in thetrial in the Netherlands. Although in
December 1998, the Libyan parliament
reportedly approved the handing over of
the two suspects for trial, Libyan leader
Col. Muammar el-Qaddafi informed theDutch media on the tenth anniversary of
the bombing that the solution lay in having
an “international court” consisting of“judges from America, Libya, England andother countries.”14
On September 30, 1998, President
13 See, e.g., Letter Dated 26 August 1998 from theCharge d'Affaires AI. of the Permanent Mission of
the Libyan Arab Jamahiriya to the United Nations
Addressed to the President of the Security Council,
UN Doc. S/1998/808 (1998); see also UN Doc. S/
PV.3920, at 4 (1998).

114TH INTERNATIONAL TRAINING COURSE
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Clinton authorized the use of
approximately $ 8 (USD) million to support
the establishment and functioning of thecourt in the Netherlands.15
V. AUT DEDERE AUT JUDICAREAUT TRANSFERERE: A NEWLY
EMERGING RULE OF
INTERNATIONAL LAW OFEXTRADITION?
On 5 April 1999, more than a decade
after Pan Am Flight 103 exploded over
Scotland, the two Libyans charged withplanting the bomb arrived in the
Netherlands to face trial for the crime. As
a result, the United Nations immediately
removed severe sanctions on the
Government of Col. Muammar el-Qaddafi
of Libya. The end of those sanctions allows
international air travel and the sale of vitalindustrial equipment to resume. The step
will also release Libyan assets that had
been frozen in a number of countries.
The Scottish judges will have to weighthe still secret evidence provided by theUnited States and Britain and decide
whether the two Libyans are guilty ofplanting the suitcase bomb. The judges willthen face the fundamental questions of who
gave the orders to blow up the plane andwhy. The British and Americans haveoutlined the main conclusions of their case,but have withheld the particulars.
The operation of transporting the two
Libyans was intricate, complex and above
all secret. No one except Hans Corell, thechief legal counsel for the United Nations— not even Secretary General Kofi Annan
14 Barbara Crossette, 10 Years After Lockerbie, Still

No Trial, N.Y. TIMES, Dec. 22, 1998, at A14.
15 Memorandum on Funding for the Court to Try

Accused Perpetrators of the Pan Am 103 Bombing,
34 WEEKLY COMP. PRES. DOC. 1939 (Sept. 30,
1998).

— knew the details surrounding thelogistics for the surrender of the two Libyan
suspects. All the legal and logisticalproblems were resolved by mid-November.
He and Mr. Corell even asked Italy to lend
the United Nations a Boeing 707 jet on
which United Nations markings werep a i n t e d . M r. C o r e l l l o c a t e d a n dinterviewed trustworthy pilots, personallyapproved the flight plan to the Netherlands
and recruited doctors and nurses toaccompany the two “passengers”, as hecalled them. He even ordered appropriate
food — no ham, shellfish or alcohol, in lightof Muslim dietary prohibitions — and took
steps to insure that the food would not be
poisoned. Then Col. Muammar el-Qaddafi,
Libya’s leader, balked at the deal.
So Kofi Annan orchestrated a discreet
but relentless political campaign topersuade Colonel Qaddafi, including ahitherto secret appeal by Prime Minister
Yevgeny M. Primakov of Russia. As partof this appeal, the United States assured
Libya that the trial would not be used toundermine the colonel’s rule. One of thereasons why the high officials of the United
Nations were involved in this case wastheir growing awareness and concern thatthe sanctions imposed on Libya do notwork. Libya was slowly persuading theOrganization of African Unity, the Arab
League and other countries that the two
Libyan suspects, Abdel Basset al-Megrahi
and Al-Amin Khalifa Fahima, would never
get a fair trial in Britain or the UnitedStates. Chad, Niger and Gambia, among
other African states, began flouting theUnited Nations sanctions by flying theirleaders or senior officials into Tripoli
airport. And in summer 1998 the 53
members of the Organization for African
Unity voted to stop abiding by the
sanctions. At the same time, by rejecting
every Libyan proposal, the United States
and Britain had found themselves in asituation of being the stubborn negative

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RESOURCE MATERIAL SERIES No. 57
ones.
In December, Kofi Annan flew to Libya
to meet with Colonel Qaddafi. After several
hours of one-on-one discussions in theleader ’s tent outside Sirte, his desert
capital, he left convinced that the colonel
had realized that a deal “had to be done”.
The chance that Colonel Qaddafi would
surrender the suspects as promised
increased substantially only after
President Mandela announced it on March
19, 1999, in a speech at Colonel Qaddafi’s
side in Tripoli.
An Italian plane took the two Libyans,each accompanied by a relative and alawyer, to the Dutch military air base.
Dutch authorities at first took the two
Libyans into custody after they arrived thisafternoon but hours later formally
extradited them to Britain - on paper, thatis - so the Scottish police could take over.
Dutch military helicopters then took the
Libyans to Camp Zeist, a former militarybase a few miles outside Utrecht. Some of
the camp’s buildings are being converted
to include a detention unit for the suspects
and a room for the Scottish court that will
be sitting here.The camp, once used byAmerican military and then taken over by
the Dutch, is kept under tight guard by
Scottish police officers. From now until theend of the trial, Camp Zeist is legally
Scottish soil. The suspects will be tried by
Scottish judges under Scottish law, accusedby Scottish prosecutors, defended by
Scottish lawyers and watched over by morethan 100 Scottish police and prison officers.
The trial itself will be open to the public.
The trial will be held before three Scottish
judges. But the start may be postponed
for several more months because defense
lawyers have asked for extra time toprepare their case. The trial has, in fact,
been postponed.
The cost of converting the base and102

holding the trial has been estimated atclose to $200 million, which will be sharedby Britain and the United States. Some of
the work was held off until the Scottish
authorities were reasonably sure that thetwo men would be handed over. In addition
to this figure, an estimated cost of the trial
will be rather high - the cost can go over
£10 million. From a legal perspective, thetrial will be unique. The only comparable
cases have been war crimes trials but they
have all been held under international
legislation.
Roadmap: from Lockerbie throughTripoli to Zeist - key dates in the efforts
to bring two Libyans to trial in the bombingof the Pan Am flight near Lockerbie,
Scotland:DEC. 21, 1988 — Pan Am flight 103 from
London to New York is blown up over
Lockerbie, Scotland.
NOV. 14, 1991 — United States andBritain accuse Abdel Basset al-Megrahi
and Al-Amin Khalifa Fahima of Libya of
involvement. Libya denies any
involvement.
MARCH 23, 1992 — Libya’s United
Nations delegate says the suspects will behanded over to the Arab League, but theWest rejects Libya’s conditions.
MARCH 31 — Security Council
Resolution 748 tells Libya to surrender thesuspects by April 15 or face a worldwide
ban on air travel and arms sales.
APRIL 30 — The Libyan leader,
Muammar el-Qaddafi, says that Libya will
not hand over the two suspects.
NOV. 11, 1993 — The Security Council
tightens sanctions.
MARCH 23, 1995 — The F.B.I. offers arecord $4 million reward for information
leading to the arrest of the two Libyan
suspects.
APRIL 19 — Libya sends a flight ofMuslim pilgrims to Saudi Arabia despite
the air embargo.

114TH INTERNATIONAL TRAINING COURSE
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JUNE 11, 1997 — Libya says in a letterto the United Nations Secretary Generalthat sanctions had caused losses to Libyaof $23.5 billion.
MARCH 20, 1998 — The Security
Council debates the Lockerbie issue, withwidespread support for a trial in a neutral
country.
APRIL 22— After a visit to Libya,
representatives of victims’ families say theGovernment has agreed to a trial in the
Netherlands under Scottish law.
AUG. 24 — Britain and United Statesagree two suspects can be tried in The
Hague under Scottish law.
AUG. 27 — The Security Council
unanimously endorses the plan.
FEB. 13, 1999 — A South African envoy
meets with Colonel Qaddafi and says there
is an accord.
MARCH 19 — President Nelson
Mandela of South Africa goes to Libya and,with Colonel Qaddafi, announces that thetwo suspects will be handed over by April
6.
APRIL 5 — The suspects are handed
over to the United Nations, and thesanctions are suspended.
With the two accused Libyans awaiting
trial in the Netherlands, the question
arises as to whether the Lockerbie case has
modified the law governing theinternational cooperation in criminal
matters. Specifically, has the “third
alternative” been added to the traditional
rule aut dedere aut judicare - aut
transferere? Under this principle, therequested state has had only two options:either to submit the case to the competentauthorities for prosecution, or to surrender
the person to the authorities of therequesting state. Since Lockerbie, has thediscretionary power of the requested
country increased and broadened byencompassing also the “middle path”:
neither extradition, nor prosecution, but“delivery” of the accused to a third state?

Or, maybe, one could argue that the“delivery” (or whatever other names areused for that purpose) is a de facto
extradition, particularly from theperspective of the requested state and its
domestic law. However, if we assume, forthe sake of an argument, that “delivery” isa substantially new element then one
would be compelled to acknowledge that
the Security Council started playing a newrole of an “enforcer” of the principle aut
dedere aut judicare. Such realization raises
further questions, such as the scope rationemateriae of the modified principle. It is tobe assumed that the intervention of the
Security Council in extradition may bejustified, in so far as the situation
constitutes a threat to international peaceand security, thereby legitimizing theaction of the Security Council under
Chapter VII of the UN Charter. But thenagain the question arises as to whether
such an intervention would have to be
restricted to terrorism, terrorists andterrorist acts.
VI. OSAMA BIN LADEN: AN
AFTERMATH OF LOCKERBIE OR
THE LOCKERBIE RULE,
CONTINUED?
Encouraged by a clear success of astrategy employed in the Lockerbie case,the Government of the United States has
been trying to use the same tactic in themost recent case of Osama bin Laden.
Roving from camp to camp in fear of
American missiles, reduced tocommunicating with minions throughhand-carried computer disks, strictly
watched even by his Afghan “hosts,” Osamabin Laden is one of the world’s most soughtafter fugitives for his suspected role in thebombings of U.S. embassies in Kenya andTanzania last year. Bin Laden, themessianic heir to a Saudi Arabian
construction fortune, wants to eliminate

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RESOURCE MATERIAL SERIES No. 57
the U.S. presence in Islamic lands. He ison the FBI’s most wanted list and has a $5
million bounty on his head. He is underfederal indictment in New York, andAfghanistan’s Islamic fundamentalist
Taliban government is the target of U.S.
economic sanctions for harboring him. The
United States remains publicly committed
to his capture. In secret meetings in 1999
in Washington, New York and Pakistan,
U.S. representatives have continued topress Taliban officials to turn over bin
Laden.
In Summer 1998, Saudi Arabia andAfghanistan’s Taliban militia reached asecret deal to send Osama bin Laden to a
Saudi prison, nearly two months before
deadly bombs devastated two American
embassies and put the suspected terror
mastermind on the FBI’s 10 most wanted
list. But the deal crumbled as the US
embassies in Kenya and Tanzania werebombed and was dead by the time U.S.
forces retaliated two weeks later withmissile attacks on camps linked to bin
Laden.
Prince Turki al-Faisal, the Saudi chiefof intelligence, led a small Saudi delegation
to Taliban headquarters in Kandahar,
Afghanistan, in June 1998. They sought
either bin Laden’s ouster from Afghan
territory or his custody for trial in Saudi
Arabia for advocating the government’s
overthrow. During their three-hour
meeting, Taliban supreme leader Mullah
Mohammed Omar and his ruling council
agreed to end the sanctuary bin Laden has
enjoyed in Afghanistan since 1996. But thesurrender would have to be carefully
orchestrated so that it “would not reflect
badly on the Taliban” and would not appear
to be “mistreating a friend,” according toTurki. The key to that initial deal, Turki
said, was a Saudi pledge that bin Ladenwould be tried only in an Islamic court —a condition of surrender that would have104

precluded his extradition to face any U.S.
prosecution. Final terms for the bin Laden
hand-over were being hammered out
between Taliban and Saudi envoys,
according to Turki, during the same periodthat authorities now believe the embassy
attacks were being plotted. Those
negotiations ended amid a flurry of
recriminations in the aftermath of thebombings. The embassy bombings werelinked immediately to bin Laden byWestern authorities, with the apparent
side effect of rallying support for bin Laden
within the Taliban. Subsequent retaliatory
U.S. missile attacks on bin Laden’s Afghan
training camps only hardened that support.
In Summer 1999, a Taliban spokesman
told that bin Laden will never be forced outof Afghanistan against his will. The
spokesman specifically ruled out any future
surrender deals with the U.S. or Saudi
Arabia. However, the Taliban are willingto turn the matter over to a committee ofIslamic scholars from Saudi Arabia andother countries in the region who would act
as arbitrators. Moreover, they proposed
asking international group of Islamicscholars to look into the case and perhaps
find a way to meet the American request.
But they have always stopped short ofactually agreeing to place Osama in
American custody.
On July 6, 1999, President Clinton
banned all commercial and financial
dealings between the United States andAfghanistan’s ruling Taliban militia,
accusing the Taliban of continuing toprovide refuge to Osama bin Laden.
Clinton’s executive order freezes all Taliban
assets in the United States, bars the importof products from Afghanistan and makes
it illegal for U.S. companies to sell goods
and services to the Taliban, whose militant
Islamic fighters control about 85 percentof the mountainous, war-torn country. U.S.
officials said the measure is intended to put

114TH INTERNATIONAL TRAINING COURSE
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pressure on the Taliban to surrender bin
Laden.16 In a letter to Congress explaining
his order, Clinton said: “The Taliban
continues to provide safe haven to Osamabin Laden allowing him and the [al Qaeda]
organization to operate from Talibancontrolled territory a network of terrorist
training camps and to use Afghanistan asa base from which to sponsor terrorist
operations against the United States”.
Clinton’s order does not address trade
between Afghanistan and other countries,
and its immediate effect is likely to bemodest. Moreover, on August 20, 1998, an
executive order froze U.S. assets of bin
Laden and forbade any financialtransactions between U.S. companies andhis entities.17
U.S. government officials argue thatnabbing bin Laden is feasible and morally
necessary. They point to Libya’s surrender
last April, after years of political andeconomic pressure, of two suspects in thebombing of a Pan Am airliner over
Lockerbie. A federal grand jury in New
York has indicted bin Laden on murder andconspiracy charges for allegedly directing
the embassy attacks. The indictment also
links bin Laden to deadly attacks on U.S.
military personnel in Saudi Arabia andSomalia.18 Specifically, he is charged withconspiracy, bombing of U.S. embassies, and224 counts of murder. Bin Laden was said
to be the leader or emir of a group called“al Qaeda” or “the Base,” a terrorist group“dedicated to opposing non-Islamic
governments with force and violence.”

The Southern District indictment
charged that the al Qaeda leadership was
headquartered in Afghanistan andPeshawar, Pakistan between 1989 and1991, and in Sudan from 1991 until 1996,
returning to Afghanistan in 1996. U.S.
support for the governments of Saudi
Arabia, Egypt, and Israel, and the United
Nations and U.S. involvement in the 1991
Gulf War and in Operation Restore Hopein Somalia in 1992 and 1993, “were viewed
by al Qaeda as pretextual preparations for
an American occupation of Islamic
countries.” According to the indictment,
bin Laden formed an alliance with the
National Islamic Front in the Sudan andwith representatives of the Hezbullah,
issuing fatwas (orders) to other membersof al Qaeda that U.S. forces in Saudi
Arabia, Yemen, and Somalia should be
attacked, as well as a general fatwa in May
1998 warning that all U.S. citizens weretargets. The indictment also charged thatbin Laden sought to obtain chemical andnuclear weapons and their components.19
It is argued that there are four strategies
that are being used by the United Statesin their fight against terrorism: (1)procedures and measures inherent in thecriminal justice system; (2) seeking treaty
agreements to establish new international
norms and enforcement mechanisms; (3)disruption of terrorist structures throughcivil sanctions; (4) the prudent use of
military force to prevent terrorist attacks
and to degrade terrorist infrastructures.20
It should be noted, however, that,

16 John Lancaster, Afghanistan Rulers Accused Of

Giving Terrorist Refuge; Clinton Bans Trading With
Taliban Militia, THE WASHlNGTON POST, July7, 1999, A15.
17 See Exec. Order No. 13,099, 63 Fed. Reg. 45,167(1998); see also Continuation of Emergency
Regarding Terrorists Who Threaten to Disrupt the
Middle East Peace Process, 64 Fed. Reg. 3393 (1999)(continuing sanctions).

18 Indictment, United States v. Osama bin Laden, S(2)98 Cr. 1023 (LBS), (S.D.N.Y. Nov. 4, 1998), available
i n h t t p : / / w w w. f e r o e s . n e t / p u b / h e r o e s /indictments.html.
19 See also US Indicts Osama bin Laden on Embassy
Bombing Charges, Agence Fr.-Presse, Nov. 4, 1998,
available in LEXIS, News Library, Wire Service
Stories File.

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RESOURCE MATERIAL SERIES No. 57
particularly in the nineties, the US
Government tried, with success, anothermethod, that is, to engage the Security
Council in the law enforcement operations.
The Osama case illustrates this strategy.
In its resolution 1214, adopted at the3952nd meeting, on 9 December 1998, theSecurity Council stated, inter alia :“Deeply disturbed by the continuing useof Afghan territory, especially areas
controlled by the Taliban, for the shelteringand training of terrorists and the planningof terrorist acts, and reiterating that the
suppression of international terrorism isessential for the maintenance ofinternational peace and security,
13. Demands also that the Taliban stop
providing sanctuary and training forinternational terrorists and theirorganizations, and that all Afghan factions
cooperate with efforts to bring indicted
terrorists to justice”.
Finally, in October 1999, the UnitedStates asked the Security Council to
impose economic sanctions on the Islamic
Taliban Government in Afghanistan,demanding that the Afghans turn overOsama bin Laden.21 In the operative partof the resolution 1267 (1999), adopted at
its 405lst meeting, on 15 October 1999, theSecurity Council, among other things,“2. Demands that the Taliban turn overOsama bin Laden without further delay toappropriate authorities in a country where
he has been indicted, or to appropriate
authorities in a country where he will be
20 Ruth Wedgwood, Responding to Terrorism: The

Strikes Against bin Laden, 24 Yale Journal ofInternational Law 559 (1999).
21 Barbara Crossette, U.S. Presses Security Council
for Sanctions against the Taliban, N.Y. TIMES, 7
October 1999, A9.

106r e t u r n e d t o s u c h a c o u n t r y, o r t oappropriate authorities in a country where
he will be arrested and effectively brought
to justice”.
At a time when the United Nations
Security Council often has trouble reaching
agreement on whether one crisis or anotherconstitutes a threat to international peace,the 15-member panel has been able tocoalesce solidly on the growing dangers ofinternational terrorism. The council voted
unanimously to wage a common fighta g a i n s t t e r r o r i s t s e v e r y w h e r e . 22
Remarkable is not only an accord in thismatter, but also the fact that two Islamic
countries voted in favor. As pointed out by
the US representative during the debate,
the resolution will send a direct message
to Osama bin Laden and terrorists
everywhere: “You can run, you can hide,
but you will be brought to justice”.23 He
added that this action will bring newpressure on the Taliban to turn over Osamabin Laden to authorities in a country where
he will be brought to justice. The Taliban
in Afghanistan continue to provide bin
Laden with safe haven and security,
allowing him the necessary freedom tooperate, despite repeated efforts by theUnited States to persuade the Taliban toturn over or expel him and his principal
associates to responsible authorities in acountry where he can be brought to justice.
The resolution gives the Taliban a clear
choice. It has 30 days to turn over bin
Laden. If the Taliban do not turn him overwithin that period, the sanctions will takeeffect. Those sanctions will restrict foreign
landing rights on aircraft operated by the
Taliban, freeze Taliban accounts aroundthe world and prohibit investment in any
undertaking owned or controlled by the
22 Barbara Crossette, U.N. Council in Rare Accord:Fight Terrorism, N.Y. TIMES, 20 October 1999, A8.
23 S/PV.4051 (1999).

114TH INTERNATIONAL TRAINING COURSE
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Taliban. The draft resolution alsoestablishes a Committee to monitor the
implementation of sanctions.
Shortly after the adoption of theresolution 1267 (1999), the Taliban
representatives expressed their willingness
to discuss the most contentious issue with
the Americans, that is, the hand-over ofOsama.24 He himself made the offer in a
letter to the Taliban chief Mullah, Omar,on condition that the Taliban insure safe
and secret passage to a third, unidentified
country.25 It is unlikely, however, that theUnited States will find this movesatisfactory as the pertinent operative
paragraph in the resolution makes it clearthat the main point is that Osama be
brought to justice, not necessarily in the
United States.
Let me end by asking a provocative
question (before anyone else addresses it
to me): after the Lockerbie and bin Ladencases, do other countries have a reason tofear an intervention of the Security Council
in their extradition relations?

24 Taliban Willing to Talk, N.Y. TIMES, 24 October

1999, A8; Barbara Crossette, U.S. Steps Up
Pressure on Taliban to Deliver Osama bin Laden,
N.Y. TIMES, 19 October 1999, A7.
25 Taliban Ponder Bin Laden Offer, N.Y. TIMES, 31
October 1999, A10.

107

RESOURCE MATERIAL SERIES No. 57

EXTRADITION AND MUTUAL LEGAL ASSISTANCE
IN THAILAND
Sirisak Tiyapan*
I. INTRODUCTION
Traditional criminal justice usually
begins with the tracing of clues andgathering of evidence after the occurrenceof a crime, then to arresting of a suspect,putting him under custody, enquiring
witnesses and, unless the investigation isconducted by the prosecutor, to refering thecase to the prosecutor for screening andinstitution of prosecution or dropping it andletting the suspect go. In case ofprosecution, the prosecutor then resumes
his function in the court throughout thewhole process. However, when the casebecome more complex because it touches
upon the components of internationalized
character or involves the matters of astate’s jurisdiction, then the process
generally applicable to the domestic
criminal has justice may become impossible
or even fail on its entirety. This may beperceived, for instance, when a crime has
been committed in one country and thecriminal has fled away to another country.
How do we bring the offender back to standtrial and punishment? Of course, it would
be impossible for the country of the crime
scene to send its officers to arrest the
fugitive directly in the territory of anotherstate because it is against internationallaw. Also, if the investigation orprosecution is carried out in one country
but the essential evidence or witnesses
exist in another country: How do we obtainsuch evidence or statements of such
witnesses because then again theproceeding country could not send its
authorities to conduct an investigation or* Expert State Attorney, Legal Counsel Department,
Office of the Attorney General, Thailand

108

to collect evidence within the jurisdictionof another country.
The situation illustrated here is not
exhaustive. There still exists many aspects
and problems the difficulty of which isbeyond the capacity of a single state to deal
with, especially under the current situation
whereby many serious transnationalorganized crimes such as narcotics
trafficking, money laundering,transportation of illicit firearms, sexuality
exploitation of women and children,
computer fraud, financial crime, terrorism,and so on, have been spread all over theworld posing a great danger to every
country. The tendency of today’s crime islikely to continue and become even more
severe in the next millennium. To halt thetransnational criminality, states must
concretely coordinate with each other in theprevention and suppression of it.
Assistance and coordination between states
to tackle the crime can take many forms
and is collectively known as “international
cooperation.”
In broad sense, international
cooperation encompasses every kind ofactivity regarding crime and justice,namely; mutual legal assistance,
extradition, transfer of proceedings andprisoners, as well as technical cooperation.
However, since this paper is intended to
be used as the supporting document for thelecture to be given in the 114th UNAFEI
I n t e r n a t i o n a l S e n i o r S e m i n a r,
“International Cooperation to Combat
Transnational Organized Crime - with
Special Emphasis on Mutual Legal
Assistance and Extradition”, it will,
therefore, discuss and concentrate

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
substantially only on the issues of mutual
legal assistance and extradition asemphasized. In this context, the experienceof Thailand in dealing with the cases, laws,
regulations, and practice will be taken as
the model for comparative study.
II. EXTRADITION IN GENERALOf all categories of international
cooperation, extradition is the mostconcrete and direct means to take back the
fugitive offender to stand trial and serve
sentence in the jurisdiction of the state
where he fled away. Extradition of today is
still based on different norms and practices,which is reflected by diverse national
legislation and treaties concluded between
countries. The reasons behind thisdiversity may be as one scholar1 point out
that “States still favor bilateral treaties andmake extradition a consequence of theirpolitical relations. Thus, politically friendly
countries reduce what government consider
to be barriers to extradition, while the same
countries increase these barriers in theirrelations with less friendly ones”. To takeinternational cooperation among states,
which has as its initial objective to copewith crime, as a means for acquiring
political interests as such is, of course,
against the spirit of crime prevention andsuppression. Extradition should be
regarded as a tool to prevent the fleeing
away of transnational criminals who
usually snatch the advantages from thelimits of law enforcement, which often end
at the border, as well as loopholes arisingfrom the different laws and practices
among nations to escape from justice.
Difference in norms and practices isunarguably the crucial cause of hindrance
and failure of effective extradition. Concern
has, therefore, been expressed intensively
at international forums as how to
1

Cherif Bassiouni, Preface of International Review
of Penal Law, Vol.62, Nos. 1-2, 1991, p.13

harmonize or compromise this kind ofdifferences.
To harmonize diversity, attempts havebeen made on several occasions either at
the global or regional level by internationalorganizations, associations, and NGOs.
This can be perceived, for instance, fromthe works of the United Nations,
Association Internationale De Droit Penal,
the Asia Crime Prevention Foundation or
ACPF, and UNAFEI.
One predominant effort in this regard is
the adoption of the United Nations Model
Treaty on Extradition in 1990, which has
been proposed revising later on by theIntergovernmental Expert Group Meetingon Extradition2. This Model treaty has asits main objective the suggestion of a
uniform guideline to facilitate treaty
conclusions between states. Recently, theissue of extradition has also been discussed
comprehensively during the drafting of theInternational Convention against
Transnational Organized Crime. According
to the draft convention, significance of
extradition in enhancing the effectivenessof criminal justice and law enforcement
mechanisms under an international setting
to combat transnational organized crime
has been recognized, thus, one provision
related to extradition will be specifically
included.3
III. EXTRADITION IN THAILAND
A. Legal Basis
As a civil law country, Thailand
promulgated the “Extradition Act B.E.
2472” in 1929. This act is the fundamental
2

Intergovernmental Group Meeting on Extradition
was held at Siracusa, Italy, from 10-13 December
1996
3 Draft United Nations Convention against
Transnational Organized Crime, Article 10, UN
documents A/AC. 254/4/Rev.2

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RESOURCE MATERIAL SERIES No. 57
legislation for all extradition proceedings
so far as it is not inconsistent with theterms of any Treaty, Convention, orAgreement with a foreign state, or any
Royal Proclamation issued in connectiont h e r e w i t h 4 . U n l i k e t h o s e “ Tr e a t yprerequisite countries,” Thailand may
surrender to a foreign state the person
accused or convicted of crimes committed
in the jurisdiction of that state even if there
exists no treaty, provided that by the lawsof Thailand such crimes are punishable
with imprisonment of not less than one
year5. In practice, however, a declaration
for the reciprocal assistance as well as
certain requirements such as “double
criminality”, principle of “ne bis in idem”,
and so forth, must also be satisfied before
the request for extradition is accorded.
The request for extradition from aforeign state, whether having concluded atreaty with Thailand or not, shall be sent
through diplomatic channels, since an
exclusive center for extradition like theCentral Authority of Mutual assistance in
Criminal Matters does not yet exist underThai laws. Nevertheless, a need to have theCentral Authority to expedite and facilitate
enforcement of the rapid increasing
requests for extradition has been addressed
quite often among agencies concerned. So
far, this idea has been reflected in newlegislation, which is under draft. Presently,
extradition is deemed to be commonly
handled by various authorities, namely: theMinistry of Foreign Affairs; the Royal
Police Organization, the Office of the
Attorney General; the Court; and theCorrectional Department.
Although there is still no clear-cut
indication whether extradition is anadministrative or judicial matter, thegeneral consensus among the authorities
4
5

Article 3 of the Extradition Act B.E. 2472
Article 4 of the Extradition Act B.E. 2472

110

concerned seems to be implied that it is adirect responsibility of the executive tosupervise the extradition process and tolook it proceeds on the right direction.
Thus, unless the Government decided
otherwise, the extradition request will betransmitted to the Ministry of Interior inorder that the Public Prosecutor may bringthe case before the Court6.
By virtue of Article 11 of the Extradition
Act, the preliminary investigation in the
Court must be made in accordance with theCriminal Procedure Code. And thissometime causes problems, in particularwith regard to the sufficiency of evidence,
because Article 14 of the Act authorizes the
Court to discharge the accused if it
determines that the evidence isinsufficient 7. The State Attorney8 who
handles extradition proceedings in the
Court has to be very careful about theadmissibility and sufficiency of evidences
adduced since the adequacy of evidence toinstitute “prima facie” for extradition in his
opinion might be “inadequate” for somejudges who might prefer higher assurance.
Being in use for more than sevendecades, the Extradition Act B.E. 2472 is
no longer able to cope with modern concepts
and the progress of contemporary
extradition. In particular, it is incapable to6

Article 8 of the Extradition Act B.E. 2472
Article 14 of the Extradition Act B.E. 2472 provides
that “if the Court is of opinion that the evidence isinsufficient it shall order the accused to bedischarged at the end of forty-eight hours after suchorder has been read, unless within this period the
Public Prosecutor notifies his intention to appeal.
The appeal must be flied within fifteen days andthe Court shall order the accused to be detained
pending the hearing of such appeal”.
8 The term “Public Prosecutor” has been replaced by
the term “State Attorney” since the public
Prosecution Department” has been changed to be
the Office of the Attorney General in 1991.
7

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
answer several questions arising from thedissenting interpretation amongauthorities concerned. Accordingly, theCabinet has on 1 April 1997, passed a
resolution setting up a Special Committee
to review and revise laws related to
extradition including the Extradition Act
B.E. 2472. This ad hoc committee ischaired by the Attorney General andconsists of the representatives from various
agencies concerned. It is expected that withthe overhaul of extradition legislation,
Thailand would be able to bring moreadvantageous and preferable system in thisregard to combat transnational organizedcrime in this new era.
B. Extraditable Offence
If the term “extraditable Offences” isbroadly interpreted as to cover all offences
the extradition of which is not refused
because of its nature, or excluded by thelimit of the list of offences as prescribed in
the treaties concluded between somestates, then the extraditable offence should
not include those offences which areagainst the principles of “double
criminality”, “ne bis in idem”, “politicaloffences”, as well as any offences beyond
the scope of the list.
In Thailand, the Extradition Act B.E.
2472 does not directly specify the definitionof extraditable offences, while manytreaties concluded between Thailand andforeign states do. Article 4 of theExtradition Act, which is applicable on the
non-treaty basis, can be implied that the“extraditable offences” according to Thailaws are such offences punishable withimprisonment of not less than one year.
Notwithstanding the provision of
extradition laws, treaties between
Thailand and some foreign states before
1983 were concluded upon the “list-ofoffences” approach9. The tendency to shift
from the “list-of-offences” approach washeralded for the first time in the treaty

signed with the United States of America
in 1983 where the minimum “one-year”
imprisonment basis was clearly spelled out
as the sole element to determine theextraditability of the offences. The“minimum penalty” principle as such has
been used as the model for negotiation oflater treaties between Thailand and foreignstates on several occasions.10 In draftng of
the new Act on Extradition, currently
under consideration of the Drafting
Committee, a one-year minimum
imprisonment is also adopted as the basis
for determining of “extraditable Offences.”
It is quite clear, therefore that at present
Thailand tends to follow the principle of“minimum penalty” rather than the “listof offences” approach. This perhaps
because the latter is viewed as less flexible
to cope with the dynamic emergence ofmodern and complex of nature crime of
today.
Not only the range of penalty of theoffence that has to be taken into account,but also the remaining period for its
enforcement. Extradition will not be
granted if the remaining period for serving
penalty is less than six months even if otherelements to fulfill extraditability of therequested offence have been met. Thisextended “minimum penalty” principle isupheld in the treaty between Thailand andthe United States, and followed by thetreaty between Thailand and the People’s
Republic of China. In addition, extraditableoffences have been interpreted by the same
treaty as to cover the preparing, attempting
to commit, aiding or abetting, assisting,
9

The 1911 Extradition Treaty between Thailand andthe U.K., the 1937 Extradition Treaty between
Thailand and Belgium, the 1976 Extradition Treaty
between Thailand and Indonesia, the 1981
Extradition Treaty between Thailand and thePhilippines.
10 For example in the conclusion of treaty between
Thailand and the People’s Republic of China.

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RESOURCE MATERIAL SERIES No. 57
counseling or procuring the commission of,or being as accessory before or after the fact
to, an offence which is punishable under
the laws of both Contracting Parties byimprisonment or other forms of detention
for a period more than one year or by any
greater punishment.
Apart from the time clause, Thailand has
also adopted, as the determining basis of
the extraditable offences, the actual
conduct of the alleged offender rather thanthe categorization or the naming of suchconduct.11
C. Reciprocity
The principle of reciprocity in extradition
requires that the requested state would,
vice versa, have the opportunity of callingfor extradition for the same crime, wherein
the requesting state would have to grantit. 12 Reciprocity is usually taken as aprerequisite claimed by the requested state
before an extradition is accommodated in
the case where no treaty with therequesting state existed. However, it is notconsidered as absolute essential even withthe requested state adhering to the “treaty
non-prerequisite” principle. This isperhaps, as one scholar pointed out,
because “This prerequisite (reciprocity)
would be missing, if the crime underlying
the request for extradition were unknown
to the requested state or if it were notpunishable according to its laws due to thecriminal law defining this offence morenarrowly”13. It is definitely clear, therefore,that merely reciprocity alone could notinstitute a mandatory condition for therequested state to accommodate a request
for extradition from the requesting state.
11 Article 2 of theTreaty between Thailand and theUnited States.
“THE RULE OF SPECIALITY IN
E X T R A D I T I O N L AW ” b y T h e o V O G L E R ,International Review of Penal Law, Vol. 62, Nos. 12, 1991, p.234

Generally speaking, reciprocity may beconsidered as the complementary part ofthe common perception among jurists inthat extradition is a matter of choice of thestate to grant to each other an accord ofassistance rather than a mandatory
obligation unless they have some treaties
between them. The requested state chooses
to extradite a fugitive to the requestingstate, upon commitment of reciprocity,
because it trusts in the standard of justiceof the requesting state and, of course,
expects to receive a similar trust from therequesting state in return. Therefore,
reciprocity is a matter of reciprocal trustand commitment for that. In this sense,
reciprocity may have some binding effectupon the requesting state after an accord
for extradition has been granted becauseof reciprocity commitment. However, tocreate reciprocity is purely a matter ofstate’s option. A requested state may refuse
acceptance of reciprocity offered by arequesting state on whatever grounds
including the difference between legal
systems as occurred between the Common
Law and the Civil Law countries.
Thailand has no difficulty in giving or
receiving reciprocal trust in justice systemof other countries. In addition, no treaty isrequired as a prerequisite for extraditioneven with the requesting state of different
legal system. Article 4 of the Extradition
Act B.E. 2472 specifies that “The Royal
Siamese (Thai) Government may at its
discretion surrender to foreign States which
no extradition treaties exist persons accusedor convicted of crimes committed within thejurisdiction of such States, provided thatby the laws of Siam (Thailand) such crimes
are punishable with imprisonment not lessthan one year.”

12 S e e112

13 Cf. Schulz, Das schweiserische Auslieferungsrecht,

1953, p.313, as cited by Theo VOGLER, Id.

114TH INTERNATIONAL TRAINING COURSE
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In practice, reciprocity is required inaccompanied with other requisites such as“extraditability”, “double criminality”, and“non-political” nature of the offence.
Requests for extradition from requestingstates, which have no treaty with Thailand
must clearly express a commitment togrant extradition of fugitives required by
Thailand in similar manner whenrequested. So far Thailand has extradited
to numerous countries the fugitive
offenders, even no treaty concluded withThailand.
D. Representative Clause“Representative Clause” is understood
to be the countervail against the refusal
for extradition in order to narrow as muchas possible the avenue for the fugitive
offender to escape from justice andresponsibility of his crime. The principleof aut dedere aut judicare14 (either extraditeor prosecute) which is stemmed from theold injunction aut dedere aut punire 15(either extradite or punish) seems to be adecisive explanation for the“Representative Clause”.
Although the representative clause isconstrued as a right kit to counter therefusal of extradition and should be
encouraged in all likelihood, there are stillsome questions regarding the extent of its
scope, manner, and appropriateness ofvarious aspects concerned. Although the
U n i t e d N a t i o n s M o d e l Tr e a t y o n
Extradition seems to be silent in thism a t t e r, m a n y e n d e a v o r s a t t h einternational level have been made for
14 This is the terms proposed by Cherif Bassiouni ascited by Edward M. Wise in “EXTRADITION: THE
HYPOTHESIS OF A CIVITAS MAXIMA AND THE
MAXIM AUT DEDERE AUT JUDICARE”,
International Review of Penal law, vol.62.Nos.1-2,
1991, p.119
15 This is the terms used by H. Grotius as cited Id.,
p. 119many occasions.
One example in this context is the textof the “Representative Clause” proposed tobe considered in the Asia Crime Prevention
Foundation Group Meeting on “Extradition
and Mutual Assistance in Criminal
Matters” held in Kuala Lumpur, Malaysia,
from 27-31 May 1997. The text reads:“If the requested country refuses anextradition request from a requesting
country because of lack of a treaty, therequested country shall establish
jurisdiction over the case requested andrefer to the authorized criminal justiceagency (based on a request from therequesting country) subject tocompliance with other requirements.”
In some countries like Thailand, therefusal of extradition due to the lack of atreaty may not occur or is very rare, thesuggestion to establish jurisdiction over thecase underlying extradition request as wellas to refer the case to the authorizedcriminal justice agency is somehow aproblematic issue. Establishment ofjurisdiction over the alleged conduct may
be possible only if such a conduct contains
in its some elements of international crimewhereby every state is capable and willingto take action, otherwise it might bedetermined by the standard of “double
criminality” principle. The lack of suchcharacteristic will render theestablishment of jurisdiction over therequested offence difficult if not entirely
impossible.
Another example is the extradition
clause in the Draft Convention against
Transnational Organized Crime16 recently
proposed under the framework of theUnited Nations, which is currently underreview of the Ad Hoc Committee on the
Elaboration of a Convention against
Transnational Organized Crime. The text

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RESOURCE MATERIAL SERIES No. 57
is partly read as follows:“The State Party in the territory ofwhich the offender or the alleged
offender is found shall, in cases where
this Convention applies, if it does notextradite that person [for the purposeof prosecution], be obliged, upon requestof the State Party seeking extradition,
whether or not the offence wascommitted in its territory, to submit thecase without undue delay to its
competent authorities for the purpose ofprosecution, [subject to the condition ofd o u b l e c r i m i n a l i t y, ] t h r o u g hproceedings in accordance with the lawsof that State. Those authorities shalltake their decision in the same manneras in the case of any other offence of agrave nature under the law of that
State”The text proposed by the Draft
Convention against Transnational
Organized Crime has been developed a bit
clearer than that of the former example
since it expressly imposes the burden toprosecute upon the requested state if it
refuses to extradite the offender.
In Thailand the principle of “aut dedere
aut judicare” has not been included in the
Act on Extradition B.E. 2472, nor any
treaty. However, the issue has been
discussed considerably during the drafting
process of the new Extradition Act, which
resulted in the acceptance of the Drafting
Committee to include the principle of “autdedere aut judicare” in the new Act.
E. Political Offence
Political Offence as the exception for
extradition is said having been built on a
triple rationale, namely:

16 Article 10 clause 9(a), General Assembly document

A/AC. 254/4/Rev.2

114

1. The political argument: which meansthat states should remain neutral
toward political conflicts in otherstates, and, therefore, should not lose
neutrality by surrendering a fugitive tohis political opponents;
2. The moral argument: which is based on
the presumption that resistance tooppression of political persecution islegitimate and therefore the politicalcrime is justified;
3. The humanitarian argument: whichmeans that a political offender should
not be extradited to a state in which herisks an unfair trial.
The pragmatic problems usually occur
due to the lack of neither universal
definition of political offence nor the
standard norm of application. Each country
has to develop its own legal and political
criteria on the subject, thus, very varied
from the others. Furthermore, thecomplication seems to be on the increase
when the exception related to politicaloffence is enlarged to cover the ordinary
crime allegedly committed by politicalmotivation. However, the most disputableissue seems to fall within the question
whether it is appropriate, and if so, how tonarrow the scope of political and politicallymotivated offence in certain types of crime
which cause massive injury to lives orsafety of the innocent individual or the
public, such as hijacking, hostage taking,terrorism, etc..
This question seems to be reflected
clearly by the diverse concept between
those who favor the political offence
exception and those who do not; or as one
expert 17 called it the split between the“prosecution” and the “defense.”
For those who support the restriction ofpolitical offence exception, such conduct isviewed as the crime per se, and since itagainst public safety, no room should beaccorded to allow the offenders escape from

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
trial and being punished in the requestingstate. In this regard, to list out certain actsand exclude them from the scope of politicaloffence, which is known as “per selimitation” or the “negative definition”, isextremely called for in international
pattern to suppress crime.
In contrast, the argument raised bythose who still firmly adhere to the
tradition political offence is substantiallyrelied on the humanitarian guarantee. For
them, the extradition should be refused in
all likelihood that a requested person will
be subjected to a biased trial or imminent
danger against his fundamental rights.
Thus, to list out offences under the “per selimitation” approach seems to be too risky
and unnecessary since the discretion
whether to extradite a fugitive or not canbe followed the normative limitations.
Position of Thailand in this regard seems
to be on the compromise. While theExtradition Act B.E. 2472, as well as thetreaties concluded between Thailand andthe United Kingdom, and Thailand andBelgium keep silent on the “negative
definition” of the political offence, the more
recent treaties between Thailand and somecountries such as the United States,
Indonesia, the Philippines, and the People’s
Republic of China, explicitly excluded “amurder or willful crime against the life or
physical integrity of a head of State or oneof the Connecting Parties or of a memberof that person family, including attempts
to commit such offence” from the scope ofpolitical offence exception.
The adoption of the “negative definition”
or “per se limitation” approach in Thailand
through the conclusion of treaties as suchis still very restricted and considered as an
17 Steven LUBET, “THE POLITICAL OFFENCEEXCEPTION”, International Review of Penal Law
Vol.64Nos. 1-21911,p.108

extraordinary exception under the current
practice. This is enlightened, for instance,by the refusal to accept a very broad list ofoffences proposed by the delegation of India
to be excluded from the course of politicaloffence during the negotiation ofExtradition Treaty between Thailand andIndia sometime ago. The reasons to refuse,according to the Thai delegation, were that:“most of the offences listed could beconsidered as normal offences, which fell
under the general rule of extraditableoffence and since there is still nouniversally accepted norm to determine
such offences as political in nature orconnected with politically motivatedcrime.” In addition, another ground for
Thailand to hesitate to adopt too wide
range of the “negative definition” perhaps
stemmed from the long implicit tradition
to treat extradition as the administrative
matter whereby the Government as theexecutive body has direct responsibility tosupervise a policy towards a requesting
foreign state, especially where theflexibility of Government’s discretion might
be lessened by the prior establishment ofcrime list.
However, since there is an international
concern about the increasing refusal of
extradition upon the excuse of politicaloffence in some categories of criminality,in particular those transnational organizedoffences, which are very dangerous andcapable of causing huge damage to lives
and properties of innocent victims all over
the world, the tendency to adopt “negative
definition” of the political offence isbecoming more and more recognized. To
respond to the internationally accepted
necessity in this regard, the Drafting
Committee of the new Act on Extradition,
therefore, unanimously agree to include in
the new Act a provision recognizing certain
conducts as the exception of politicaloffence, namely:

115

RESOURCE MATERIAL SERIES No. 57(i) a murder or willful crime against
the life or physical integrity of a
Head of State or one of theConnecting parties or of a memberof that person family;(ii) offences under the treaty whereby
Thailand is a party:(iii) offences related to illicit traffickingof narcotics;(iv) attempts, or coordinate with theoffender to commit all said offences
mentioned above
F. Extradition of Nationals
Reasons for states to refuse extraditionof their nationals may be as one scholar
pointed out long time ago that:18(i) the fugitive ought not be withdrawn
from his national judges;(ii) the state owes its subjects theprotection of its laws;(iii) it is impossible to have complete
confidence in the justice meted out
by a foreign state, especially withregard to a foreigner; and(iv) it is disadvantageous to be tried ina foreign language, separated fromfriends, resources and character
witnesses.
To adhere too strictly to the nonextradition of nationals may impede thespirit of extradition with aimed at theattempt to narrow loopholes snatched by
the fugitive offender to escape from justice,particularly if the refusal to extradite is notin line with the rule of “aut dedere aut
judicare.” And even if the principle of “autdedere aut judicare” is applied to counter
18 Lord Cockburn in R.v. Wilson, 3 Q.B.D.42, 44(1877)

AS CITED BY Sharon A. WIIAMS in“ N AT I O N A L I T Y, D O U B L E J E O PA R D Y,
PRESCRIPTION , AND THE DEATH SENTENCE
AS BASES FOR REFUSING EXTRADITION”, inInternational Review of Penal Law, Vol. 62, Nos. 12, 1911, p. 260-261

116

the refusal of extradition, questions stillarise especially with regard to thepromptness and sufficiency of evidences of
the crime scene as well as enthusiasm of
the requested state to prosecute.
Lack of promptness and sufficiency ofevidences may be compensated by thechannel of Mutual Legal Assistance
between the requesting and the requested
state. Yet, lack of enthusiasm due to nonostensive interests to deal with crime
taking place in the jurisdiction of anothersovereignty is somewhat could not be
prevented to become the cause of worry of
the requesting state, no matter how highdegree the requesting state trusts in thesystem of the requested state.
Nevertheless, even more worry in thisregard may be the lack of jurisdiction of
the requested states to try the alleged
offender.
Although a suggestion has been madefor the states that refuse to extradite theirnationals to establish jurisdiction over the
alleged cases, it is not easy to do so in everycase. Most countries have alreadyestablished their criminal jurisdiction
according to their own ways of thinking,thus, might feel it extremely difficult toembrace a new alleged conduct that may
not be a crime at all in their views.
In Thailand, the position towards the
non-extradition of nationals seems to be notso obvious as that of some countries. The
Extradition Act B.E. 2472 specifies noclear-cut rule on the issue. Article 16 of the
Act provides that “In all cases in which the
Court is of opinion that the accused is a
Siamese subject...reference must be madeto the Ministry of Justice before making anorder for the release of the accused.” Someauthorities have interpreted this provisionthat the “Thai nationality” is a mandatory
factor to refuse extradition, and the Court,
after having referred the case to the114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Ministry of Justice, shall release theaccused. However, other authorities havea dissenting view that “Thai nationality”
alone is not a mandatory factor to refuse
extradition, thus, the Court has no power
to release the person required on its own
motion. This provision, according to thedissenting view, requires the Court to refer
the case to the Ministry of Justice which isan executive agency because the actual
authority to determine whether toextradite a Thai national or not is theexecutive not the judiciary. The provision
is, therefore, considered as to forbid rather
than allow the Court to automaticallyrelease the fugitive.
In the context of the treaty, apart fromthe 1973 Extradition Treaty between
Thailand and Belgium where extraditionof national of the requested state is
explicitly forbidden, all other treaties
between Thailand and foreign countries do
not close the door for extradition ofnationals of the Contracting Parties.
In 1995, Thailand extradited a Thai
politician, who allegedly committed a crimeof narcotics trafficking, to stand trial in the
United States for the first time in history.
This deal was made upon the 1983
Extradition Treaty between Thailand andthe United States. Although Article 8 of thetreaty provides that neither Contracting
Party shall be bounded to extradite its own
nationals, other paragraphs are widely
open for each country to extradite its own
nationals if it thinks appropriate to do so.
In this case a strong opposition of the
defendant upon the basis of nationality led
to a hot controversy and debate among theauthorities concerned as to whether it ispossible and appropriate to extradite a
Thai citizen to stand trial under the foreignlaws and jurisdiction. However, since it was
impossible for Thailand to establish aretroactive jurisdiction over the person
requested for the crime allegedly

committed long before the entering into
force of specific legislation concerned,
extradition was, therefore, considered as
the best resolution to maintain the spiritof international cooperation and crime
suppression.
The most recent tendency of Thailand
in this regard may be perceived from theprovision related to extradition of Thainationals, proposed to be included in the
new Extradition Act pending drafting.
According to the proposed text, the request
for extradition of a Thai national to foreigncountry will be refused unless (1) the treaty
already concluded between Thailand andthe requesting country provides otherwise,(2) the fugitive give his consent to be
extradited, or (3) the Cabinet has aresolution approving extradition.
G. Capital Punishment
The call for abolition of capital
punishment or death penalty in various
regions19 is a contemporary phenomenon.
Strong push to abolish such kind ofconviction usually be correlated to theclaiming of human rights protection, andin turn reflected by the refusal to extradite
fugitive offenders to a requesting state
where they might be punished by death.
The requesting states that still apply
capital punishment often face with refusal,
or required by the requested states that
19 The first binding international instrument against

capital punishment is the “Sixth Additional Protocol
to the European Convention on Human rights.”
Another convention on the abolition of death
penalty was an additional protocol to the American
Convention on Human rights. In 1988 the General
Assembly of the United Nations adopted the textof a Second Optional Protocol to the International
Covenant on Civil and Political Rights which aimed
at the abolition of the death penalty. See“Extradition involving the possibility of the death
penalty” by Matthias WENTZEL in International
Review of Penal Laws, Vol. 62, Nos. 1-2, 1991, p.336

117

RESOURCE MATERIAL SERIES No. 57
have already abolished such penalty to givean assurance not to impose death penalty
upon the extradited person or at least not
to carry it out.
Refusal of extradition request upon thecitation of capital punishment or
requirement of an assurance not to impose
or carry out death penalty as such has beenstrongly protested by those countries thatstill retain capital punishment in theirsystems. For them, such practice not only
hampers the smooth flow of extradition
between states and thereby diminishes thespirit of international cooperation to
suppress crime, but may also be consideredas the effort to interfere with the judicial
discretion of the requesting state andthereby equal to the stepping over theborderline of justice sovereignty of anotherstate. According to the countries where
capital punishment still exists, there is stillno uniform rule on the issue of capital
punishment; therefore, every country is
free to establish national norm andstandard conforming to particular
historical background and tradition mostsuitable to the justice system of its own.
No state should be allowed to encroach
upon the border between nations.
Countries which strongly support theabolition of death penalty and usuallyrefuse to extradite a fugitive to therequested states that still apply capital
punishment, are mostly the European
countries. According to them, the protectionof fugitive offenders from facing justice ina requesting state for a crime related todeath penalty by refusing to extradite iscorresponding to human rights protection,
which must be maintained and universally
regarded as the absolute essential.
However, this perception has been severely
criticized by many other countries, as one
scholar indicated that: “From thecontemporary European perspective, thechoice may seem clear: the right of an118

individual to be extradited from Europe
must satisfy the minimum standards of theEuropean Human Rights Convention, aninternational instrument embodying
international standards. However, Europe
is not the globe, and a European consensus
concerning the rights of an accused is not a
global consensus.”20
From the point of view of those countries
which still retain capital punishment, it
might be necessary to have such penalty
to punish the most wicked criminal who
has committed the most severe crimewhereby other effort to correct orrehabilitate him is in despair. However, toestablish death penalty and to carry it out
are different matters. Let us take Thailand
for example, according to the Thai Penal
Code, the most severe penalty is death.21
In practice, the law has given to the Courta very wide range of discretion to reduce
penalty when the accused pledges guilty,
or if he/she deserves penalty mitigation due
to certain circumstances prescribed by thelaws. Thus, the death penalty may beminimized to life imprisonment, or lesssevere conviction. If the offender is ajuvenile, the Court has to automaticallyreduce penalty for him/her, and, therefore,
will never be punished with death. In
summary, it is possible to say that although
Thailand still upholds the death penalty,
the possibility to apply it is rather difficult.
With regard to the extradition request
where the death penalty is concerned, it
seems that Thailand is still reluctant tofollow the standard suggested by thosestates which against the said penalty,
although their requirement has begun to
be increasingly accepted at some degree forthe sake of compromise. Most treaties
20 D a n i e l

H . D E R B Y i n “ C O M PA R AT I V E
EXTRADITION STUDY SYSTEMS”, International
Review of Penal Law, Vol.62. Nos. 1-2, 1991, p. 59
21 Article 18 of the Thai Penal Code.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
concluded by Thailand do not explicitly
forbid extradition in the case where capital
punishment is concerned, and sometreaties even implicitly allow it. For
example, the Extradition Treaty between
Thailand and Belgium clearly prescribes,
in Section 2, the extraditable offences
which include in sub-section (11) the
offence of threat to cause bodily or property
harm where such offence is inflicted withdeath penalty or imprisonment, while thetreaty between Thailand and thePhilippines, Article 2, defines theextraditable offence as the offences listed
out in the treaty where such offences may
be imposed by death, imprisonment, or
deprivation of liberty at least one year.
A compromise to remove the stagnancy
of extradition involving capital punishment
has been firstly accepted by Thailand in1983 in the provision of Extradition Treaty
signed with the United States. According
to Article 6 of the Treaty, when the offence
for which extradition is sought ispunishable by death under the laws of theRequesting State and is not punishable bydeath under the laws of the Requested
State, the competent authority of theRequested State may refuse extradition
unless:(a) the offence is murder as defined
under the laws of the Requested
State; or(b) the competent authority of theRequesting State provides assurance
that it will recommend to thepardoning authority of theRequesting State that the death
penalty be commuted if it is imposed.
To exempt murder from the ambit ofrefusal in this regard may be deemed as a
new approach which could be applied also
for the compromise between the countries
which still uphold capital punishment andthe countries which do not, in the sensethat either side recognized the importanceof conception regarding death penalty ofthe other and try to seek a tolerable
solution mutually accepted. Likewise, thecountries holding capital punishment could
not insist the countries having no capital
punishment to extradite a fugitive to facedeath penalty except in certain offences
extremely crucial for the requesting states.
On the other hand, the countries having
no capital punishment have to retreat one
step from the confrontation line by granting
extradition only for such offences. The
requesting and the requested states may
consult each other what offences should belisted as extremely crucial.
To give assurance as to recommend to
the pardoning authorities to commute
death penalty is another approach toresolve problem. The assurance like this issomehow more lenient than thecommitment not to impose death penalty
or not to carry it out, because the only
commitment binding the requesting states
is to make a recommendation to thepardoning authorities not to guarantee theresult of which. This kind of resolution
seems to suit Thailand or those countries
having similar administration because thepardoning authorities is the King, who isthe most respectful person and soleauthority to grant pardon at his own will,
and nobody even the Government could
interfere with His Majesty’s discretion. In
practice, the Minister of Interior will be theauthority to make a recommendation to theKing, but the final decision is rested with
the King.
The most recent trend of Thailand is still
unclear. Although, during the drafting of a
new Act on extradition, a suggestion has
been made as to include in the new Act a
provision to automatically commute thedeath penalty imposed by the Court to life
imprisonment in corresponding to thecommitment of Thailand, as the requesting119

RESOURCE MATERIAL SERIES No. 57
state, not to carry out death penalty if so
required by the requested states who do
not impose death penalty on the underlying
conduct requested by Thailand, thissuggestion could not obtain unanimous
agreement and still under hot debate.
H. Prima Facie Requirement
Although the common view of states
seems to emphasis on the speedy andconvenient extradition as the ideal meansof international cooperation to return the
fugitive offenders back to face justice intheir own land, it is regrettable thatextradition still falls under some technicalbarriers. The “prima facie” requirement
or whatever conditions requiring therequesting state to comply with before theextradition is accommodated, areundoubtedly construed as technicalbarriers.
In most of the common law countries, the“prima facie” requirement is usuallyinterpreted relatively wide as to embody
both the sufficiency and admissibility of theevidences in extradition proceeding. And
this is somewhat astonishing to most civil
law countries. According to civil law
concept extradition wherever proceeded
should not be confused with the actual caseproceedings which requires the extreme
strictness of proof. The sole purpose of
extradition proceedings is whether or not
the alleged fugitive should be surrendered
to the requesting state, thus, very far fromwhether he is guilty or not. The requested
state should limit its content to a warrantof arrest issued by the competentauthorities of the requesting state, or anauthenticated copy of the judgment of thecourt and other supporting document as
enough to establish the committal for trialof the person needed and to extradite him/
her.
In Thailand, the standard ofrequirement to establish suitability to120

extradite is more flexible than that of thecommon law countries. According to Article
7 of the Extradition Act B.E. 2472, therequest for extradition must be
accompanied by a duly authenticated copyof the judgment of the Court which triedhim, or a warrant of arrest issued by theCompetent Authorities of the requestingstate, or a duly authenticated copy thereof,
and by such evidence as would justify thecommitment for trial of the accused, if thecrime has been committed in Thailand.
In this regard, various treaties concluded
between Thailand and foreign states
contain similar provisions.22
I. Simplified Procedure
Simplified procedure, the surrender of
person requested with the least or without
formal proceedings of extradition in thenormal course, is a practice adopted invarious regions.23 This approach is also
supported by the United Nations throughthe adoption of the United Nations Model
Treaty on Extradition. 24 Generally
speaking, rendition of a fugitive without
meeting the stringent requirements offormalities under extradition can takemany forms such as deportation, expulsion,
exclusion, or even abduction. However,
22 For example, Article 9(3) of the 1983 Treaty between

Thailand and the United States provides that “Arequest for extradition relating to a person who issought for prosecution also shall be accompaniedby:(a) A copy of the warrant of arrest issued by a judge
or other competent authorities of the Requesting
State;(b) Such evidence as, according to the laws of theRequested State, would justify that person’sarrest and committal for trial, including
evidence establishing that the person sought isthe person to whom the warrant of arrest refers”
23 For example, in Europe, U.S.A. , and Thailand.
24 General Assembly’s Resolution 45/116 of 14
December 1990.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
such measures are considered as purely
administrative and beyond the scope of
extradition. The simplified procedure inthis regard is emphasized on an extradition
in some extra form. The main objective ofsimplified procedure is aimed at the
shortening of process to expedite and grant
as much as possible the convenience in thesurrender of the required fugitive, thus, tocut down unnecessary formalities, as wellas to waive or mitigate in some degree thetest of eligibility of the case. The question
may arise here as; To what formalities or
requisites or tests should be waived or
mitigated and to what extent? Since thesimplified procedure, like the full process
extradition itself, still relies on the different
norms and practices of a particularcountries or groups of countries without auniform rules, the answer of the said
question may be varied from jurisdiction
to jurisdiction according to national value
and philosophy. Treaties concluded
between states as well as the United
Nations Model Treaty on Extradition 25
explicitly indicates the consent of theperson to be extradited as the key element
for the “simplified procedure” but rarely
mentions details of other conditions. Thisperhaps was because the simplified
procedure was viewed as the practicalmatter requiring negotiation and mutual
consent between the requesting and therequested states, thus, left out the details
for sake of flexibility. For, instance, Article
15 of the Extradition Treaty between
Thailand and the United States regarding“Simplified Procedure” provides that “if theperson sought irrevocably agrees in writing
to extradition after personally being advisedby the competent authority of his right toformal extradition proceedings and theprotection afforded by them, the Requested
State may grant extradition without formal
extradition proceedings.” This provision
does not prescribe clearly as to what arethose formalities which will be waived andwhat could not, but leaves it to thediscretion and consultation between theconcerned authorities of both Contracting
Parties on case by case basis. In practice,
the “formal proceedings” under this article
has been interpreted as to cover all stagesof criminal procedure including the judicial
trial, if the extradition is proceeded on thefull and formal basis. Thus, during the trialof the court, if the alleged accused agrees
to be extradited, the State Attorney will
apply for the cessation of the court
proceeding, and refer the case back to the
Ministry of Interior for the arrangementof rendition as soon as possible.
Simplified procedure for the informal
extradition like this one certainly
encourages the expedition and convenienceof extradition between states and should
be welcomed. Nevertheless, to achieve thetrue spirit of extradition through simplified
procedure, and in order to save time, therequested state might be required to waive
some scope of verification once used to be
extremely essential procedure forextradition such as the consideration of the“rule of speciality,” or the “extraditability”
of the offence, as well as the protection of
fugitive’s fundamental rights throughjudicial review, etc.. In addition, technicalrequirement for the formality of the request
for extradition and supporting documents
should be made more lenient by therequested state. And this may be theproblem deserves addressing anddiscussion to seek a common resolution forthe more effective extradition.

25 Article 6 of the United Nations Model Treaty on

Extradition provides that “The Requested State
may grant extradition after receipt of a request forprovisional arrest, provided that the person sought
explicitly consents before a competent authority.

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IV. MUTUAL LEGAL ASSISTANCE
IN THAILAND
A. Background and Evolution
Unlike that of European countries,
mutual legal assistance in Thailand does
not stem from extradition treaty. Before
the promulgation of the “Act on Mutual
Assistance in Criminal Matters B.E. 2535”,
in 1992, although there were many
extradition treaties concluded between
Thailand and various foreign states suchas the United Kingdom, Belgium,
Malaysia, Indonesia, and the Philippines,
non of them mentioned about “otherjudicial assistance,” or “mutual legal
assistance” as known today. In addition,
there was also no direct legislation on thismatter. The request of this kind, if any, wasconducted in accordance with the “Generalprinciple of international law” as clearlyspelled out in Ariticle34 of the Civil
Procedure Code, which is also applicablein criminal case by virtue of Article 15 ofCriminal Procedure Code. Article 34 of the
Civil Procedure Code provides that:“Where any proceeding is to be carriedout wholly or in part through the mediumof or by request to the authorities in any
foreign country, the Court shall, in theabsence of any international agreement orprovision of law governing the matter,comply with the general principle ofInternational Law.”“General principle of international law”
in this regard includes comity, reciprocity,and “rules of due process” as generally
recognized between and among thesovereign states. When assistanceregarding the whole trial or part of it was
required, the request thereof shall be sent
through diplomatic channel, which was avery time consuming process. First of all,the Court in Thailand had to submit its
request to the Ministry of Justice; theMinistry of Justice would then refer such

122

request to the Ministry of Foreign Affairs.
The next step began by the Ministry ofForeign Affairs of Thailand sent the said
request of Thai Court to the Ministry ofForeign Affairs of the requested states
through the Thai Embassy attached to thatcountry. Upon receipt of the request, theMinistry of Foreign Affairs of the requested
state would refer the matter to the Courtof that country. After the request was
fulfilled or refused by the foreign Court, thematter would then sent back by the sameprocess.
Since the process for request and receiptof legal assistance as such was toocomplicated and delay, other efforts for the
more convenience and expedition wereincessantly developed. In 1951,Thailand
became the member of the “International
Police Organization”, or which is more
often referred to as “INTERPOL”, for the
purpose of information exchange andcooperation with other members in theprevention and suppression of crime. In
1978, Thailand concluded an agreement on
judicial cooperation in civil matter withIndonesia in order to establish a directcontact between the Courts of two
countries. Similar agreement was
concluded later on with France in 1983.
Nevertheless, cooperation under thescheme of INTERPOL is limited only
among the polices with the rigid purpose
only for information and technicalexchange not law enforcement, while
judicial cooperation agreement is limited
only for civil matters. The actual mutual
legal assistance according to the general
sense of today, which encompasses all
criminal matters, was begun after the
coming into force of the Act on Mutual
Assistance in Criminal Matters B.E. 2535,
as well as the conclusion of many treaties
regarding this matter.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
B. Legal Basis
Upon the realization of necessity tocooperate with other countries to cope withthe rising trend of transnational crime andcriminal organizations, Thailand adopted
the Act on Mutual Assistance in Criminal
Matters, B.E.2535, in 1992. This Act is themain legislation to be applied to allprocesses of providing and seeking
assistance upon the request from foreignstates or Thai agencies, in so far as it is
not inconsistent with the terms orprovisions used by the treaties concluded
between Thailand and such foreigncountries. In the case of contradiction, thetreaty will prevail. This may be perceived,for instance, from the provision of Section
9 (2) of the Act, which provides that:“Section 9: The providing of assistanceto a foreign state shall be subject to thefollowing conditions:(1) Assistance may be provided even
there exists no mutual assistancetreaty between Thailand and theRequesting State provided that suchstate commits to assist Thailand under
the similar manner when requested(2) The Act which is the cause of arequest must be an offence punishable
under Thai laws unless when Thailand
and The Requesting State have amutual assistance treaty between themand the treaty otherwise specifies....”
Apart from the Act on Mutual Assistancein Criminal Matters, B.E.2535, theCriminal Procedure Code and theConstitution also play crucial role in theactual performance because various
activities so requested such as the inquiry
and producing of evidence, search andseizure of articles, as well as the initiatingof proceedings must be carried out
conforming to the Criminal Procedure Codeand could not in one way or anothercontrary to the Constitution, which is thesupreme law of the country to guarantee
fundamental rights of the people.
Unlike that of treaty prerequisite states,
assistance in Thailand may be grantedeven there exists no treaty between
Thailand and the requesting state provided
that such state commits to assist Thailand
under the similar manner when requested.
This principle is clearly specified in Section
9 of the Act, and known as the “reciprocal
clause.” In ordinary dealing, the request
for assistance shall be submitted throughdiplomatic channel. 26 However, if themutual assistance treaty between Thailand
and the requesting state is in application,commitment for reciprocity and connection
through diplomatic channel will be waived.
The request for assistance in such a caseas well as other communications shall bemade directly to the Attorney General who
is the Central Authority of mutual legal
assistance as prescribed by the law.27
Normally, the process of requesting andgranting of the assistance will follow the
Act except where there is a treaty and thetreaty provides otherwise, then the treaty
will prevail. However, this does not meanthat the treaty is automatically applied
since the legislation in Thailand follows the“Dual System”, which means no treaty or
agreement concluded with foreigncountries by the Government is selfexecuting but needed to be legitimized or
adopted by the National Assembly before
coming effective. To this extent, a
supporting act for each particular
extradition treaty or agreement must be
enacted to support its legality. So far
Thailand has already concluded mutual
26

Section 10 of the Act on Mutual Assistance in
Criminal Matters B.E. 2535.
27 Section 6 of the Act on Mutual Assistance in
Criminal Matters B.E. 2535 provides that “TheCentral Authority shall be the Attorney General or
the person designated by him”

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RESOURCE MATERIAL SERIES No. 57
legal assistance treaties with the UnitedStates, United Kingdom, Canada, Norway,
and recently with France.

objective of mutual legal assistance likethis also seems to be rather abstract, thus,
difficult to be given a definite demarcation.

C. Objective
Perhaps the most distinct indication of
the objective for the establishment ofmutual legal assistance in Thailand isperceived from the explanation of thenecessity to promulgate the Act on Mutual
Assistance in Criminal Matters, B.E. 2535
during the introduction of its draft to the
National Assembly in 1992. The text ofsuch explanation reads: “The reason toenact this Act (Act on Mutual Assistance in
Criminal Matters B.E. 2535) is because thecrime of today has been committed under
the network of criminal organizations inmany countries whereby criminal justice ofeach country alone could not efficiently
prevent and suppress. Prevention andsuppression of the said crime has to rely tointernational cooperation. To uphold suchcooperation, it is necessary and appropriate
to enact this Act.” This explanation was
further enlightened later on in the prefaceof “Laws Related to the Execution of Work
under the Act on Mutual Assistance in
Criminal Matters, B.E.2535”28 to the effectthat certain categories of criminality havebeen mentioned as transnational crime,
namely: economic or white collar crime,
computer crime, crime committed in theindustrial world, environmental crime, as
well as drug trafficking and narcotics
crime.

Another way to indicate the objective of
mutual legal assistance is by the practical
viewpoint. In this regard, the more precise
objective of the mutual legal assistance
may be identified on one hand as to seekor request assistance from other countries,
and on the other hand to grant or render
it. This is the most explicit thing provided
in all mutual legal assistance legislationand treaties as the main objective. Let us
take Thailand for example. The Act on
Mutual Assistance in Criminal Matters,
B.E. 2535 embraces in its content both themeasures to grant assistance to foreign
requesting states and to seek assistancefrom foreign states,29 in particular Section
7 of the Act specifies very clear about this
twofold function of the Central Authority.

The said indication might be somewhat
arousing open-ended discussion, although
it might be more or less similar to that ofmany countries, because the objective or
reason to grant assistance to a foreign stateis purely a state’s option rather thanobligation. Besides, the description of theD. Forms of Assistance
Generally speaking, forms of assistanceunder the framework of mutual legal
assistance legislation of various countries
as well as those specified in treaties
concluded between them are more or lesssimilar, although the terms or wordingused may be different. This is not too
difficult to understand since thefundamental reason for requesting andrendering of assistance is to facilitate
criminal proceedings in the requestingstate. In broad sense, proceedings ofcriminal cases can be interpreted as tocover all steps of the deal such as tracingof clues and evidence, investigation,
inquiry of witnesses, prosecution, taking
testimony of the witness, etc. Criminal
proceedings under any system are similarly
relied to these processes. Assistancerequested or rendered in order to facilitate
criminal proceedings as such is, therefore,

28 Handbook of the Office of the Attorney General,

Thailand, “Rung Silp Printing Co. ,Ltd”., Bangkok,
First Edition, September 1995.

124

29 Section 9 to Section 14, and Section 36 to Section

41 of the Act.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
based on the same set of activities orgenerally referred to as “forms ofassistance.”
In Thailand, forms of assistance arebasically understood as to include certain
forms of the processes of criminal cases
handling, as well as other indefinite
conducts under the scope of the stipulated
open-ended description. According to
Section 4 of the Act on Mutual Assistancein Criminal Matters, B.E. 2535,“assistance” means assistance regarding
investigation, inquiry, prosecution,
forfeiture of property, and other proceedings
relating to criminal matters.
Categorization of the forms of assistanceis further enlightened by the provision ofSection 12 of the same Act to cover thefollowing:(i) Taking statement of persons,providing documents, articles, andevidence out of Court, serving
documents, searches, seizure of
documents or articles, locating
persons;(ii) Taking the testimony of persons andwitnesses, adducing document andevidence in the Court, forfeiture or
seizure of properties;(iii) Transferring persons in custody fortestimonial purposes;(iv) Initiating criminal proceedings.
It is quite clear from the above provisionthat the terms “other proceedings”
stipulated in Section 4 is possible to beinterpreted as to cover forfeiture or seizureof properties, transferring persons incustody for testimonial purposes, as wellas initiating of criminal proceedings,
however, such interpretation is not
exhaustive. For some legal scholar, the said
terms is intentionally made relatively
flexible and open-ended, so it is capable toencompass other forms of assistance in the
future.

E. Authorities and Officials♦ Central Authority
In the past, mutual legal assistance
between countries was a time consuming
matters and rather complicated. Seeking
for and providing of assistance wasconducted only through diplomatic channel
or Letters Rogatory because there was noother means for a direct contact. To avoid
delay and minimize unnecessary
formalities, the concept of having “Central
Authority” to be the center for sending andreceiving requests as well as taking a direct
responsibility of mutual legal assistancematter was, therefore, initially included inmost of the treaties concluded by theUnited States. Advantages of having the“Central Authority” have become more andmore recognized in the international level.
This is testified, for example, from theUnited Nations Model Treaty on Mutual
Assistance in Criminal Matters, article 3,
whereby the designation of an authority or
authorities through which requests for the
purposes of mutual assistance should bemade is suggested.
In Thailand, the “Central Authority,”
according to the Act on Mutual Assistancein Criminal Matters, B.E. 2535, as well as
treaties concluded with various countries,
is theAttorney General or, the person
designated by him.30
The Central Authority is the official who
take the most predominant role andresponsibility in the process of granting
and requesting assistance. Apart fromgeneral function as the coordinator toreceive the request for assistance form therequesting state and transmit it to theCompetent Authorities concerned, as wellas to receive the request seeking assistancepresented by the agency of Thai
30 Section 6 of the Act on Mutual Assistance in

Criminal Matters, B.E. 2535.

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RESOURCE MATERIAL SERIES No. 57
Government and deliver it to the Requested
State, other equal or more significant task
entrusted to the Central authority is todetermine the legality and eligibility of all
requests and processes. In this context heis also authorized to rule down regulations
or announcement for the implementationof the whole process.31
Determination of the Central Authority
in all manners regarding the granting andseeking assistance will be final except in
two situations. First, if it is overruled by
the Prime Minister, and second, if it isrelated to the issues of national sovereignty
or security, crucial public interests,
international relation, political offence, or
military offence, and where the Advisory
Board, set up under Section 8 of the Act on
Mutual Assistance in Criminal Matters,
B.E.2535, has a dissenting view and thePrime Minister agree with the dissenting
view.
♦ Competent Authorities
The Competent Authorities are those
officials who actually carry out functions
conforming to the request for assistance as
notified by the Central Authority. Thus,
Competent Authorities in general sense are
the officials of the requested state having
authority and functions related to eachparticular form of assistance requested
such as the investigation authorities, thedetective units, the prosecution, etc.
In Thailand, the Competent Authorities
are the following:(1) The Police Commissioner General: todeal with the request for initiating of
criminal proceedings and taking
statement of persons, providing
documents, articles, and evidence outof Court, serving documents,
31 Section 7 of the Act on Mutual Assistance in

Criminal Matters, B.E. 2535.

126

searches, seizures, and locating
persons;(2) The State Attorney Director Generalfor Litigation: to deal with therequest for initiating of criminal
proceedings and taking the testimonyof persons and witnesses, adducing
document and evidence, as well as
requesting for forfeiture or seizure ofproperties in the Court;(3) T h e D i r e c t o r G e n e r a l o f t h eCorrectional Department: to deal
with the request for transferring
persons in custody for testimonial
purpose.
♦ Advisory Board
To assist the Central Authority indealing with some sensitive issues related
to the national sovereignty or security,
crucial public interests, international
relation, political or military offence, anAdvisory Board (the Board) comprising
representatives from agencies concerned,
namely; the Ministry of Defense; theMinistry of Foreign Affairs; the Ministryof Interior; the Ministry of Justice; theOffice of the Attorney General; and otherfour distinguished peoples is establishedunder Section 8 of the Act on Mutual
Assistance in Criminal Matters, B.E. 2535.
In case of dissent between the Central
Authority and the Board, the matter will
be referred to the Prime Minister for his
ruling.
F. Double Criminality
Requirement of “double criminality” inmutual legal assistance is one of thedebatable issues. The principle of double
criminality requires that the conduct
underlying the assistance requested mustalso be a criminal offence punishable under
the laws of the requested state, otherwise
such request may be refused. Obstacle ofthis kind, which is also a crucial hindrance
to extradition, normally stems from the114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
divergent philosophy and conception under
different legal system, which results
eventually in the difference in substantive
criminal law. States of different laws
usually hesitate to render assistance for the
conduct that does not institute a criminal
offence in their jurisdiction for fear of
unnecessary encroachment upon thefundamental rights and liberty of person,
as well as the incapability to claim for the
return reciprocity. Difficulty arising fromthis principle becomes even more severe
nowadays when states have to include in
their laws some innovative concept to copewith the modern crime. Even now, treaties
on mutual assistance between some states,
as well as the United Nations Model Treaty
on Mutual Assistance in Criminal Mattersstill uphold the claiming of “double
criminality” as justified for the refusal ofassistance. However, since verifying of“double criminality” to institute eligibilityof the request is a complicated and time
consuming matter because each componentof the crime and offence under the laws of
the requested state must be identified out
from the alleged conduct before thecompliance with the request is permitted,
but fighting against crime could not be
waited for too long, alleviation or waivingof the strictness in application of “double
criminality” approach has become
increasingly called for at present. This isperceived from the recent conclusion ofmutual assistance treaties between the
United States and some countries
including Thailand whereby the obligation
to cooperate with the other Contracting
Party prevails the requirement of double
criminality. Even more striking example,
is the motivation under the United Nations
framework in the drafting of International
Convention against Transnational
Organized Crime where the refusal of
granting assistance within the ambit ofmutual legal assistance upon the assertionof “double criminality” will not be allowed,
unless such grant will bring about somecoercive measures.
Position of Thailand in this regard seems
to be on the compromise between theconcept of retaining innocent’s rights andliberty on one hand, and spirit ofcooperation between and among states tosuppress and control crime on the otherhand. While the Act on Mutual Assistancein Criminal Matters, B.E.2535 places theprinciple of “double criminality” as aprerequisite for granting assistance,
treaties concluded with the United States,
Canada, United Kingdom do not requireit. On the contrary, all said treaties impose
obligation on each Contracting Party toprovide assistance to the Other
Contracting Party even the underlying
conducts so requested does not constitutea crime or an offence in the requested state.
G. Refusal of Request
Generally speaking, states arecompetent to refuse granting assistancerequested by other states on whateverreasons since there is no hard and fast rule
under international law to force them torender it, unless they are bound byagreements or treaties. The requested state
does not have to grant assistance, unless
it so should because it thinks appropriate
to do so for the reason of comity orreciprocity between countries. Refusal inthis context may be made either upon theassertion of technical or non-technicalgrounds. Technical grounds for the refusal
in this regard are those explicitly
prescribed as “grounds for refusal” innational legislation, international
instruments, or treaties on mutual legal
assistance concluded between states. Nontechnical grounds in this light are thosebeyond the scope of what specified by law
or treaty, for example, refusal upon thepolitical reasons.
As regards the non compliance with therequest, the “Refusal of Assistance” clauseas mentioned in the United Nations Model127

RESOURCE MATERIAL SERIES No. 57
Treaty on Mutual Legal Assistance, and“Limitations on Compliance” as used bysome treaties, denote the same concept topreserve as State’s absolute discretion not
to grant assistance in some matters oroccasions which are sensitive to them.
Apart from certain grounds such as theassistance requested is beyond the scopeof treaty or agreement, or contrary to theelements of “double criminality”, “ne bis inidem”, and “conflict of jurisdiction”, othergrounds often asserted by sovereign states
for refusal of giving cooperation are thepreservation of national sovereignty,
security or crucial public interests, and the
avoidance of political offence or military
offence.
In Thailand similar grounds for refusal
are stipulated both in the Act on Mutual
Assistance in Criminal Matters, B.E. 2535
as well as various treaties concluded withforeign states.
Within the framework of the Act on
Mutual Assistance in Criminal
Matters,B.E. 2535, Section 9 provides that:“Section 9: The providing of assistanceto a foreign state shall be subject to thefollowing conditions:(1) Assistance may be provided even there
exists no mutual assistance treaty
between Thailand and the Requesting
State provided that such statecommits to assist Thailand under thesimilar manner when requested;(2) The act which is a cause of the request
must be an offence punishable underThai laws unless when Thailand andthe Requesting State have a mutual
assistance treaty between them andthe treaty otherwise specifies
provided, however, that the assistancemust be conformed to the provision ofthis Act;

128(3) A request may be refused if it shallaffect national sovereignty or security,
or other crucial public interests ofThailand, or relate to a politicaloffence;(4) The provision of assistance shall not
be related to a military offence.”
As regards mutual legal assistancetreaties, the clause related to the refusalof request usually prescribed similarly. For
instance, Article 2 of the “Treaty Between
Thailand And Canada on Mutual
Assistance in Criminal Matters” concluded
in 1994, partly provides that:“The Requested State may refuse to
execute a request if it considers that:(a) the request would prejudice thesovereignty, security or otheressential public interest of theRequested State or the safety of any
person; or(b) the request relates to a politicaloffence.”114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
V. ADDITIONAL DATAAPPENDIX I
A. Countries having Extradition Treaties with Thailand up to October
1999.
Number1
2
3
4
5
6Countries
The United Kingdom
The United States
BelgiumIndonesia
The Philippines
People’s Republic of China

7

Malaysia

8
9
10

Fiji
CanadaAustralia

Date of Signing
4 March 1911
14 December 1983
14 October 1937
29 June 1976
16 March 1981
26 August 1993
Succession ofThai-United
Kingdom Treaty.
"""

B. Countries having no Extradition Treaty but commit to follow
Reciprocal Principle
Number1
2
3
4
5Countries
FranceItaly
NorwayGermanAustria

C. Countries having signed Extradition Treaties but has not yet
ratified them.
Number1
2
3
4

Countries
Cambodia
Bangladesh
Laos
Republic of Korea
Source: Ministry of Foreign Affairs.

129

RESOURCE MATERIAL SERIES No. 57
APPENDIX II
A. Countries having Mutual Legal Assistance Treaties With Thailand
upto October 1999.
Number1
2
3

Countries
The United States
CanadaThe United Kingdom

Date of Signing
19 March 1986
3 October 1994
12 September 1994

B. Country having singed Mutual Assistance Treaties but has not yet
ratified it.
♦ France

C. Country having negotiated Mutual Assistance Treaty. and pending
the signing of it.
♦ Norway
APPENDIX III
A. States requesting Extradition from Thailand.

Requesting States
Australia
Austria
Belgium
CanadaFranceGerman
Malaysia
NorwayUnited Kingdom
United States

130

Number of
Cases During
1996-1997
1
1
1
1
2
1
14

Number of
Cases in 1988
Up to October
1
1
3
1
1
1
4

Total
2
2
2
2
3
1
2
1
1
15

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
B. States requested by Thailand for Extradition.
Requested States
Australia
CanadaGermanMalysia
Italy
People’s Republic of
China
United Kingdom
United States

Number of
Cases during
1997-1998
1
1
1

Number of
Cases in 1998
Upto October
1
1
1
-

1
-

1

Total
1
1
1
1
1
1
1
1

APPENDIX IV
A. Countries Requesting Assistance from Thailand during January
1996-October 1999.
Countries

Austria
Belgium
CanadaDenmark
FranceFinlandGermanIndia
IcelandJapan
Laos
Lithuania
PolandRussiaSwedenSingapore
South Africa
Switzerland
TaiwanUnited Kingdom
United States

Number ofcases requested
during
1996-1997
5
10
1
2
9
1
1
2
1
2
1
5
1
5
8

Number of cases
requested during
January 1998October 1998
3
3
1
2
8
2
3
1
1
1
6
1
1
1
3
1
5
9

Total

8
13
1
3
10
2
12
2
1
1
1
1
8
2
5
1
1
3
1
10
17

131

RESOURCE MATERIAL SERIES No. 57
B. Foreign countries from which Thailand requested assistance.
During January 1996-October 1998.
Countries

Austria
Australia
CanadaFranceGermanGreeceJapan
People’s Republic of China
Pakistan
Singapore
Switzerland
United States

132

Number of
Cases requested
During
1996-1997
2
1
1
1
1
1

Number of Cases
requested In 1998,
up to October

Total

4
1
2
1
-

2
4
2
2
2
1
1
1

1
3

1
4
1

1
4
1
4

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

INTERNATIONAL COOPERATION IN FIGHTING
TRANSNATIONAL ORGANIZED CRIME: SPECIAL EMPHASISON MUTUAL LEGAL ASSISTANCE AND EXTRADITIONJohn E. Harris *I. INTRODUCTION
I should like to start my examination of
the major features of international
cooperation by sharing with you some
information about my organization. The
Office of International Affairs (OIA) in the
Criminal Division of the United States
Department of Justice was establishedtwenty one years ago this week, and we
specialize in processing requests to andfrom the United States for extradition andmutual legal assistance. We also
participate with the State Department in
the drafting of new extradition and mutual
legal assistance treaties, the negotiation ofinternational conventions, and engaging in
general efforts to improve international law
enforcement cooperation. The staff of OIA
consists of nearly eighty men and womenin our Washington, D.C. headquarters aswell as attorneys and associated staff insix foreign countries. On any given day,
we are in the process of handling about
6,000 requests to and from the U.S., forextradition and mutual assistance, and thenumber of cases grows every year, due inlarge part to the growth of transnationalorganized crime.
For purposes of our discussion today, I
will use the phrase “transnationalorganized crime” to include offenses
committed by organized bands or groupsof criminal in which national borders arecrossed in connection with the crime. Thus,
it covers the most familiar operations of the* Director, Office of International Affairs, Criminal
Division, U.S. Department of Justice, United Statesof America

traditional organized crime gang, or
Mafias, including terrorist attacks, drugtrafficking, money laundering,counterfeiting, financial fraud, aliensmuggling, and trafficking in women andchildren. Offenses falling within thisdefinition would include many of thesecrime are carried out daily by organizedcrime groups Russia, Asia, the Middle East,
Mexico, Colombia, and Nigeria — and theUnited States. In addition, transnationalorganized crime includes crimes committed
wholly within one country by an organizedcriminal group and the defendant flees toa foreign country to avoid prosecution orpunishment. For example, in a recent casein Florida, the assassin for a drugtrafficking ring, who committed several
cold-blooded murders of several membersof a rival drug ring. Although the killer
committed all of his murders within thestate of Florida, where his drug ring
operated, he fled to England as soon as he
was identified. After lengthy efforts, theman was finally extradited back to the U.S.,
pleaded guilty, and is serving a life
sentence. This is an example of a localorganized crime matter that acquired
international connections andcomplications through the flight of thecriminal.
We all know that the world is becoming
smaller and more inter-related every day.
Advances in telecommunications,transportation, and technology make itpossible for people in every nation to feel
more interconnected than at any time inhistory. The same breakthroughs intelecommunications (including the growthof the Internet and the development of133

RESOURCE MATERIAL SERIES No. 57
advanced new systems of wireless andsatellite-based communications) allow
virtually every person on the planet to haveaccess to anyone else. These advances thathave so greatly facilitated trade, travel, andtelecommunications have also benefitedinternational criminal activity. In addition,
the breakdown of the former Soviet Union
has created a number of new nations thatare still striving to develop truly effective
law enforcement systems.
With this in mind, how significant is the
problem of transnational organized crime?
Let me offer some facts that illustrate thematter for you.
— All $48 billion worth of cocaine andheroin in the United States each year
originates abroad, and is brought hereby transnational organized crimegroups.
— Two thirds of all counterfeit currency
detected in the U.S. is actually createdoutside of the United States.
— About 200,000 of the automobiles
stolen in the U.S. each year, worth
over a billion dollars, are taken
outside our borders for sale abroad.
— Theft of trade secrets from U.S.
companies by their foreign businesscompetitors resulted in losses to the
U.S. economy estimated at $18 billion
in 1997.
— The production and sale of counterfeit
products and other forms of copyright,
trademark, and patent infringement
cost U.S. companies over $23 billion
annually.
— Organized terrorist groups continue
to maim and kill the innocent andunsuspecting. Americans seem to bea favorite target, and the recent, tragic

134

bombing of our Embassies in Kenya
and Tanzania, in which hundreds ofinnocent people lost their lives, show
clearly that the work of theseorganized terrorist groups can bedeadly.
In response to this growing threat fromtransnational organized crime, manynations have stepped up their efforts toconfront and contain transnationalorganized crime. You have already heard
from Mr. Nilsson about the response by theEuropean Union and the Council of Europe
to this problem, and Dr. Plachta will tell
you more about the efforts of the United
Nations to develop a global treaty in thisarea. The United States has supported allof these efforts.
I would like to take just a moment tomention the scope of the United States’internal response to the problem.
President Clinton announced at the United
Nations in 1995 that internationalorganized crime groups pose not just a law
enforcement problem, but a threat to ournational security. He also issued
Presidential Decision Directive 42, which
directs government agencies to use allavailable legal means to attack
international crime. The Directive alsocommands U.S. law enforcement,
diplomatic, intelligence, and defense
agencies to work together with othergovernments to identify and punishtransnational criminnal, to eliminate
sanctuaries for international criminals.
There have been a number of importantchanges within the U.S. Government, ande v e n w i t h i n m y o w n a g e n c y, t h e
Department of Justice, in recent years dueto this heightened emphasis on
strengthening our cooperative
relationships with foreign law enforcement.
— Attorney General Janet Reno meets

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
foreign officials virtually every week
to discuss ways to improve efforts tocombat international crime. In justthe last ten days, for instance,
Attorney General Reno met with the
Minister of Justice of Argentina andagreed to identify high-priority
mutual legal assistance matters forexpedited handling. She held similar
meetings with the Minister of Justiceof Indonesia and the Minister ofJustice of Latvia, and, at her
direction, other Justice Department
officials met with high level officials
from Mexico, Colombia, and othercountries. She is deeply committed
to this issue, and has made it a highpriority within the JusticeDepartment.
Developing
relationships with other countries
traditionally was the job of the State
Department, but in recent years thegrowth of transnational organizedcrime has made it essential that wein law enforcement work directly andcooperatively with foreign
governments to build these
relationships ourselves.
— The U.S. law enforcement agencies
all have expanded their operations
overseas. The FBI now has 32
overseas offices, and JusticeDepartment law enforcement
agencies have nearly 7,000 active
investigations at their overseas
offices.
— The Justice Department has
increased the number of senior
attorneys to U.S. embassies in orderto provide advice on specificorganized crime investigations and toassist in negotiating andimplementing mutual legal
assistance and extradition treaties
and other international instruments.
These attorneys, who report to me,

work closely with both the U.S, law
enforcement agency representatives
at the embassy and with the lawyers
in the Ministry of Justice or Attorney
General’s Office of the host country.
— The Justice Department’s Criminal
Division, which traditionally focusedon crimes occurring inside the U.S.,
now spends a very significant portionof its time working on international
criminal cases, such as international
terrorism, drug trafficking, money
laundering, export control, andcomputer crimes. OIA has rapidly
become one of the largest componentsof the Criminal Division, and thenegotiation and implementation of
extradition and mutual legal
assistance agreements has become
our largest activity.
We know, however, that no single nation
can successfully combat internationalorganized crime alone. Therefore, in
addition to negotiating bilateral treaties
and agreements, Justice Department
lawyers have been actively working withmultilateral organizations to agree on
procedures and instruments to combat
transnational organized crime.
— We have been very active in the G8(Canada, the United Kingdom, Italy,
Japan, France, Germany, the UnitedStates, and Russia) which is chaired
this year by Japan. The G8’s Senior
Expert Group on Transnational
Organized Crime, also known as the
Lyons Group, has developed 40 anticrime recommendations, and is
working to implement them globally.
This group will meet in Tokyo next
week, to continue its efforts.
— We have also been active in the
Organization of American States(where we helped develop OAS

135

RESOURCE MATERIAL SERIES No. 57
conventions against corruption andfirearms trafficking), at theOrganization for Economic
Cooperation and Development(where we helped in negotiation of anOECD convention requiring states topunish the payment of bribes toforeign government officials ininternational business transactions),
at the Council of Europe (where weare working on COE conventions on
computer crime and on public
corruption) and at the United
Nations, where the UN Organized
Crime Convention is being developed.
These negotiation initiatives are very
important, and show us what the future
may hold for transnational law
enforcement. Let me mention, however,two or three recent cases that illustrate
how the Justice Department’s efforts
involve practical measures in actual
criminal investigations as well as global
negotiations.
II. BOMBINGS IN AFRICA
In 1998, truck bombs destroyed the U.S.
Embassies in Nairobi, Kenya, Dar Es
Salaam, Tanzania, and in the process
dozens of Americans and hundreds of
Kenyan and Tanzanian citizens were killed
or injured. Within hours of the bombings,
the first of nearly 300 FBI agents flew toAfrica to begin intensive investigation,
alongside their Kenyan and Tanzaniancounterparts. Forensic examinations andinterviews of suspects were conductedalmost around the clock. Federalp r o s e c u t o r s f r o m N e w Yo r k a n d
Washington were on the ground withindays to help direct the U.S. investigators
in Nairobi and Dar Es Salaam. Today,
hundreds of FBI agents continue to workon the investigation, both in the U.S. andabroad, and their efforts have been helped
tremendously by leads from the136

intelligence community. Recently, formal
criminal charges were filed in the U.S.
courts against several members of the
Usama bin Laden criminal organization
responsible for the bombings, and one
suspect is now in custody in the United
Kingdom awaiting extradition to the U.S.
Many of you know that investigators
recently discovered links between theorganization and efforts to commit
additional acts of terror, this time on U.S.
soil. In December, 1999, the FBI arrested
a member of this organization who had
smuggled explosives into the U.S. from
Canada. U.S. and Canadian investigators,
working closely together under our mutual
legal assistance treaty with that country,
uncovered additional information about theorganization, and at our request Canada
has arrested another suspect, who is being
held for extradition.
III. DRUG TRAFFICKING
In late 1999, U.S. Drug Enforcement
Administration agents, working closelywith police in Colombia and Mexico,completed an extensive investigation of
cocaine and heroin trafficking cartels. As
a result, the three Governments
simultaneously arrested dozens of suspects
in the U.S., Mexico, and Colombia, andseized drug proceeds and properties worth
millions of dollars. As a result of thisoperation, about thirty of Colombia’s mostpowerful drug traffickers are currently injail awaiting extradition to the U.S. Using
the applicable mutual legal assistancetreaties and agreements, the three
countries will share with each other theevidence needed to convict the offenders
and to prove in court that the assets seized
are subject to confiscation.
In these two cases, you can see both thecurrent nature of the threat posed byinternational crime, and the corresponding
globalization of the law enforcement

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
response. None of these investigations
could have been successful had not thepolice and investigators in the affected
countries worked together.
IV. MECHANISM FOR
INTERNATIONAL COOPERATION
I would now like to describe the key
features of modern mechanisms forinternational law enforcement cooperation.
A. Police to Police Assistance
Most international cooperation isconducted by direct liaison between police
in the requesting and requested state. Thisis sometimes referred to as “cop to cop”
cooperation, and is usually predicated not
on a specific treaty or international
agreement, but rather on the basis of good
will, mutual respect, and shared interestin combating crime. A good example ofsuccessful “cop to cop” cooperation is theinvestigation of the Kenyan and Tanzanianembassy bombings that I mentioned
earlier.
It is largely to facilitate this kind ofcooperation that the United States has
stationed law enforcement agents at its
embassies in other countries, positioned to
conduct ongoing and close liaison with theircounterparts in those countries. The FBI
has agents, called “legal attaches” or“legats,” in 32 countries. The Drug
Enforcement Administration and theCustoms Service have their agents in aneven larger number of countries. Similarly,
a number of foreign countries havestationed their law enforcement agents in
the United States for the same purpose.
For example, the National Police Agencyof Japan has agents posted in Washington
who have been quite effective in advancing
the interests of Japanese police in criminal
investigations.
A major vehicle for advancing “cop tocop” cooperation is the International
Criminal Police Organization, or
INTERPOL. This organization iscomprised of “National Central Bureaus”
in each of its members state’s police
apparatus, and it serves as a conduit for
the rapid and secure transmission ofinternational criminal investigative
information.
When it works, “cop to cop” cooperation
can be fast, efficient, and refreshingly freeof formalities. However, there are many
instances in which a request for assistancethat relies solely on the generosity and good
will of the requested state’s police simply
goes unanswered.
B. Letters Rogatory
While police to police liaison can be
extremely useful, there are many instancesin which the police of the requested state
can do little without obtaining a court orderor other compulsory process. In these
instances, the police will need theassistance of a judge.
A letter rogatory is a request from ajudge in one country to a judge in anotherin which the former asks the latter to use
the requested state’s judicial power toassist the requesting judge. While theletter rogatory process was developed toenable judges to aid judges, a judge in therequesting state may issue letters rogatory
on behalf of the police or prosecutors in thatcountry. Virtually every country has
legislation for execution of letters rogatory,or permits its judges to execute them as amatter of comity. In the United States, theapplicable legislation is Title 28, UnitedStates Code, Section 1782, a copy of which
is attached to this paper.
Once the requesting state’s judge signs
the letter rogatory, it is transmitted via
diplomatic channels, a process that cantake many weeks or months. Upon arrival,

137

RESOURCE MATERIAL SERIES No. 57
it first is reviewed by the requested state’s
Ministry of Foreign Affairs. This process
which can add a degree of uncertainty tothe process, because the diplomatic corps
is generally considered free to refuse to act
on a letter rogatory if it feels that theassistance sought would be inconsistent
with the requested state’s public policy. If
the request is accepted by the Ministry ofForeign Affairs, it usually is thenforwarded to the Ministry of Justice orAttorney General’s chambers in therequested state, which transmits therequest to a judge for execution. The judge
generally is under no obligation to executethe request, and if he or she does executethe request it will be done in strict
compliance with the law of the requested
state. This can add another level of
uncertainty to the process, because the lawof the requested state may be very different
from the law of the requesting state withrespect to such matters as theauthentication of evidence, the manner inwhich evidence is taken or preserved, theprivileges that witnesses may raise to block
execution of the request. In someinstances, the law of the requested state
may contain restrictions on cooperationthat seriously impede efforts to execute therequest. For example, some countries do
not execute letters rogatory prior to thefiling of formal criminal charges in therequesting state — a serious limitation,
since sometimes the requesting state needs
the evidence sought to determine whether
charges should be filed. Another example:
in some countries, the bank secrecy laws
do not empower a judge to obtain bankrecords sought in a letter rogatory. Oncethe request has been executed (or the judge
has decided not to execute it), the results
are usually sent back to the requesting
judge via diplomatic channels.
The letter rogatory process has
occasionally produced spectacularly
successful results for us. In some cases in138

which letters rogatory were issued, therequested judge successfully executed it
immediately, and bank records or otherevidence sought in the request wereavailable in as little as one week. One
successful example is the case many years
ago of Roger FRY and Sicilia FALCONE,
two men who operated a marijuana andcocaine smuggling ring so huge that it
garnered $60 million in two years. Close
cooperation between narcotics
investigators in the U.S. and Mexico
resulted in FALCONE’S arrest in Mexicoand FRY’s simultaneous arrest in Detroit,
Michigan. Records seized during Falcone’sarrest showed that he and FRY had several
bank accounts in Switzerland, so U.S. sent
a letter rogatory to Switzerland for recordsof the accounts. The Swiss provided therecords, which proved the movement of
hundreds of thousands of dollars in drugmoney and the Swiss to seize the money.
FRY learned, on the morning that his trial
was to start, that U.S. prosecutors had
obtained copies of his Swiss bank records,
and he immediately agreed to plead guilty
to all charges.
More often, however, the letter process
is not very successful, and the prosecutor
or police officer who generates a letter
rogatory may wait many frustrating
months, or years, only to find that therequested evidence is not produced. We
have many cases in which evidence soughtby letters rogatory was not supplied untillong after the trial has been completed.
There have been some recent efforts tomake the letters rogatory system work
more efficiently and effectively. The
Council of Europe has negotiated a treaty
that updates its 1957 convention on themutual execution of letters rogatory. The
European Union has begun discussions on
establishing a “judicial network” which, it
is hoped, will expedite execution of lettersrogatory between European nations

114TH INTERNATIONAL TRAINING COURSE
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covered by the network. We are monitoringthese efforts closely, but it does not appear
that these efforts have yet borne fruit.

negotiations that were initiated in largepart through the wisdom and hard work of
UNAFEI Director Kitada.

C. Mutual Legal Assistance Treaties
An alternative to letters rogatory isprovided by the development of mutual
legal assistance treaties (MLATs). The
United States has thirty-one (31) MLATs
in force, with the following countries:
S w i t z e r l a n d , Tu r k e y, I t a l y, t h eNetherlands, Canada, Mexico, theBahamas, the United Kingdom (regarding
the Cayman Islands and other Caribbean
dependent territories), Thailand, Morocco,
Spain, Argentina, Jamaica, Uruguay,
Panama, the Philippines, the United
Kingdom, Hungary, Korea, Austria, Israel,
Antigua, Lithuania, St. Vincent and the
Grenadines, Grenada, Latvia, Poland,
Australia, Trinidad, Belgium, and mostr e c e n t l y, t h e H o n g K o n g S p e c i a l
Administrative Region. We have signed
MLATs with another twenty-three (23)countries, and these treaties will enter into
force in the next few months. These fiftyfour treaties cover most European
countries and many of the world’s the major“bank secrecy” jurisdictions. Of course,many other countries have begun active
campaigns to negotiate MLATs, too,
notably the Philippines, Korea, Canada,
Australia, and the United Kingdom. The
rapidly expanding network of bilateral
MLATs will soon rival the network of
extradition treaties.

Each MLAT places an unambiguous
obligation on each party to provide
assistance in criminal investigations in theother party. MLATs entitle the requestingstate to assistance in:

The United States has made thenegotiation of MLATs in Asia a particularhigh priority, in part to maximize ourability to address transnational organizedcrime problems, such as the Chinese
Triads. For that reason, we have MLATs
in force with Thailand, the Philippines, theRepublic of Korea, Australia, and the Hong
Kong Special Administration Region. The
United States is currently in the processof negotiating an MLAT with Japan —(1) acquiring bank records and otherfinancial information;(2) questioning witnesses and taking
statements or testimony;(3) obtaining copies of government
records, including police reports;(4) serving documents; transferring
persons in custody for purposes ofcooperation;(5) conducting searches and seizures;and(6) freezing and repatriating stolen
property or proceeds of crime.
Each MLAT also permits any other formof assistance not prohibited under the lawof the requested state, and we successfullyu s e d t h e M L ATs t o h a n d l e m o r esophisticated and difficult requests. For
example, we have made or received
requests under MLATs to take thetestimony of witnesses via real-timesatellite videolink; to search for and seize
information from computer hard drives, orInternet Service Providers; to conduct
undercover operations, or conduct
wiretaps, where permitted by law; to seize
and repatriate stolen artwork or
archeological treasures worth millions ofdollars; or to place threatened persons in
our witness protection programmes.
While some MLATs differ a bit fromothers, most of them have five key
components that make the processing of
M L AT r e q u e s t s e a s i e r a n d m o r e
predictable than other mechanisms forcooperation:

139

RESOURCE MATERIAL SERIES No. 57
1. Scope - Each MLAT specifies thescope of the obligation to provide
assistance. All require thatcooperation must be provided at theearliest stage of the investigation,prior to the filing of formal charges,
thus eliminating one problem withsome letters rogatory.

early stages of an investigation it isdifficult to predict what crime
ultimately will be charged.
Accordingly, the majority of our
MLATs do not require dual criminality
unless the request is for a search andseizure or for the confiscation ofassets.

2. Bases for Denial - Each MLAT
specifies the grounds on whichassistance can be denied. MLATs
typically allow denial of requests thatappear to involve a political offenses
or a military offense not recognizedunder the ordinary criminal law, or if
the request would violate theconstitution of the requested state. All
MLATs permit denial of requests thatwould violate the “essential interests”
of the requested state interests suchas national security or basic public
policy. By specifying the grounds onwhich requests can be denied, theMLATs bring predictability to theinternational cooperation process.

3. Use limitations - All of the MLATs
contain a very clear obligation not to
use information or evidence supplied
under the MLAT for any case orinvestigation other than that for
which the information or evidence wasrequested. This kind of provision issimilar to the rule of specialty inextradition matters, and helps assure
the requested state that the
information provided will be used only
for proper purposes.

It should be noted that some of ourearliest MLATs (with Switzerland andthe Netherlands) contained a list of
the crimes for which assistance could
be granted, and permitted denial of
the request if the case involved acrime not on the list. We quickly
learned that this list approach was not
helpful, and impeded cooperation in
major cases in which the laws of thetwo countries were different but there
was no “essential interest” served byrefusal to grant the aid. Therefore,s u b s e q u e n t M L ATs p e r m i t t e d
assistance to be granted for any crimefor which there is “dual criminality,”i.e., that it is an offense in bothrequesting and requested state. We
soon concluded that even that is too
restrictive a rule for mutual legal
assistance, particular because in the140

4. Central Authority - One key
innovation of the MLATs is that they
oblige each party to name a “Central
Authority” i.e., an agency or person
designated to see to the prompt
execution requests from the otherparty. In virtually every MLAT, theCentral Authority is the Ministry ofJustice or the Attorney General ofeach state.
A good Central Authority cannot be
merely a “mailbox” through which
requests are transmitted. On thecontrary, the Central Authority is
expected to take an active role ininsuring the each request is executed.
Our practical experience has beenthat a good Central Authority is a key
part of to the success or failure of an
MLAT.
5. Asset Forfeiture - The mostsuccessful MLATs all make provision
for cooperation in cases in which
unlawfully obtained assets are located114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
in the requested state. Many of these
MLATs also provide for sharing theconfiscated assets between the parties
to the treaty. The United States has
used the MLATs to recover well over$300 million in drug proceeds andother illegally acquired funds. I
should point out that we do not keep
all of this money. Instead, our practiceis to share confiscated funds with our
MLAT partners who assisted us in
obtaining the evidence needed toprosecute the case.
All of our most recent MLATs containthese five ingredients, and these elements,
among other, help make the MLAT process
an especially effective mechanism fortransnational cooperation. In the twentyy e a r s s i n c e o u r f i r s t M L AT, w i t h
Switzerland, entered into force, the UnitedStates had made and received several
thousand requests under MLATs fromvarious countries. We in OIA have madeand executed these requests at the sametime that we processed hundreds ofrequests for evidence by letters rogatory
and other processes, so we have had a good
opportunity to see and compare theoperation of the various processes. Thereis no doubt in my mind that MLATs provide
a more efficient and more reliable basis forinternational cooperation in evidencegathering than many of the othermechanisms available. It is of course
possible that the United Nations
Tr a n s n a t i o n a l O r g a n i z e d C r i m e
Convention currently being negotiated in
Vienna will provide an even more efficient
vehicle for managing international
cooperation. Only time will tell us whether
that is true or not.
V. INTERNATIONAL EXTRADITION
I would like to say a word or two about
the role of international extradition in thebattle against transnational organizedcrime.

The applicable United States legislation
on international extradition is found at
Title 18, United States Code, Section 31813196. These statutes are attached to thisarticle.
Our laws require that there be an
extradition treaty in force before
extradition can take place. We haveextradition treaties with about one
hundred and eleven (111) countries. In thepast few years, we have signed new treaties
with about forty (40) countries in Asia andelsewhere, including Australia, the Hong
Kong Special Administrative Region, India,
Korea, Malaysia, the Philippines, and Sri
Lanka. We also have treaties in force withJapan, Thailand, and other important
Asian nations.
There are three issues that typicallyarise regarding these extradition treaties:
1. Extraditable offenses: Our older
extradition treaties each contain a list of
the crimes for which extradition can besought or granted. Newer treaties define
extraditable offenses as any crime that is
punishable in both states by more than one
year ’s imprisonment. During treaty
negotiation, we sought and received
assurances that the new treaty will permit
extradition for organized crime related
crimes.
2. Evidence Needed: Common law
countries, like the United Kingdom andCanada, traditionally refused to extradite
unless the request was accompanied by“such evidence as would justify committal
for trial in the requested state.” Therequesting state must show sufficientevidence to establish a “prima facie case”
against the offender, i.e., enough evidence
to persuade a judge in the requested statethat the offender could have been convictedin that state. Civil law countries, such as
France and Germany, usually did not deem141

RESOURCE MATERIAL SERIES No. 57
it necessary or proper to review the weightof the evidence against the offender, andare satisfied that a properly certified
warrant for arrest is outstanding. Civil law
states often had difficulty meeting the“prima facie case” standard, and criticized
the common law states for this rule.
Recently, some common law countries suchas the U.K. have amended their law toeliminate the prima facie case rule andadopt the civil law approach, at least in
dealings with European Union countries.
The U.S., however, is one common law
country that never followed the “prima
facie case rule” in the first place. Our
extradition jurisprudence requires only
“probable cause,” or just enough evidence
to issue an arrest warrant. This is a very
low standard, equivalent to what is needed
to issue a search warrant. Most of ournewest extradition treaties use thisprobable cause standard.

strongly that criminals should never escapepunishment solely because of nationality,
and that generally offenders should be triedin the community most affected by thecrime.
We are gratified to see many civil law
countries coming to the same conclusion.
In 1996, Mexico extradited one its citizens
to the U.S. for the first time in history, andin 1999, Colombia resumed extraditing its
nationals to us after a hiatus of nearly adecade. Bolivia, Argentina, Uruguay all
signed extradition treaties with the U.S.
that require extradition of nationals to agreater or lesser degree. Mandatory
extradition of nationals is provided for inmost new U.S. extradition treaties, and weare currently negotiating several treaties
with European countries that will containsuch provisions.
VI. CONCLUSION

3. Extradition of nationals: One of themost troubling issues in modern
extradition practice is the question of theextent to which states extradite their own
citizens. Common law countries
traditionally draw no distinction between
their nationals and others for purposes ofextradition. Many civil law countries,
however, either bar themselves fromextraditing their citizens altogether, or
permit such extradition only in exceptional
cases. Nations that refuse to extradite
their citizens become safe havens for theircitizens who commit crimes in othercountries. Sometimes, nations that refuse
to extradite their citizens offer to prosecute
these offenders in lieu of extradition, butsuch prosecutions have proven to be
extremely difficult as a practical matter,extremely expensive. These prosecutions
also tend to impose heavy, unfair burdens
on the victims of the crime, who arecompelled to travel great distances atconsiderable expense and inconvenience inorder to see justice done. The U.S. feels

142

In conclusion, please allow me to pointout that the global battle to confront anddestroy transnational organized crime is acontest that demands the best of all of us,
as participants in the criminal justicesystem. The stakes are enormous.
President Clinton has said that“[International criminals] jeopardize theglobal trend toward peace and freedom,
undermine the fragile new democracies,
sap the strength from developing countries,[and] threaten our efforts to build a safer,more prosperous world.” For these reasons,
it is important that we make the most ofopportunities like this conference, to learn
all we can about the tools available forinternational cooperation, and take theselessons with us to our homes for use inbuilding the brighter future we and ourfamilies deserve.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS§1782. Assistance to foreign andinternational tribunals and tolitigants before such tribunals(a) The district court of the district inwhich a person resides or is found mayorder him to give his testimony orstatement or to produce a document orother thing for use in a proceeding in aforeign or international tribunal,
including criminal investigations
conducted before formal accusation.
The order may be made pursuant to aletter rogatory issued, or request made,by a foreign or international tribunal
or upon the application of any
interested person and may direct thatthe testimony or statement be given,or the document or other thing be
produced, before a person appointed by
the court. By virtue of his appointment,
the person appointed has power toadminister any necessary oath andtake the testimony or statement. The
order may prescribe the practice andprocedure, which may be in whole orpart the practice and procedure of theforeign country or the international
tribunal, for taking the testimony orstatement or producing the document
or other thing. To the extent that theorder does not prescribe otherwise, thetestimony or statement shall be taken,
and the document or other thing
produced, in accordance with theFederal Rules of Civil Procedure.
A person may not be compelled to give
his testimony or statement or to
produce a document or other thing inviolation of any legally applicableprivilege.
(b) This chapter does not preclude a person
within the United States fromvoluntarily giving his testimony orstatement, or producing a document orother thing, for use in a proceeding in
a foreign or international tribunal

before any person and in any manner
acceptable to him.
(June 25, 1948, c. 646, 62 Stat. 949;
May 24, 1949, c. 139, § 93, 68 Stat. 103;
Oct. 3, 1964, Pub.L. 88-619, § 9(a), 78
Stat. 997; Feb. 10, 1996, Pub.L. 104106, Div. A, Title XIII, § 1342(b), 110
Stat. 486.)§ 3181. Scope and limitation ofchapter(a) The provisions of this chapter relating
to the surrender of persons who havecommitted crimes in foreign countries
shall continue in force only during theexistence of any treaty of extradition
with such foreign government.
(b) The provisions of this chapter shall be
construed to permit, in the exercise ofcomity, the surrender of persons, otherthan citizens, nationals, or permanent
residents of the United States, whohave committed crimes of violenceagainst nationals of the United States
in foreign countries without regard to
the existence of any treaty of
extradition with such foreign
government if the Attorney Generalcertifies, in writing, that —(1) evidence has been presented by
the foreign government thatindicates that had the offenses
been committed in the UnitedStates, they would constitutecrimes of violence as defined
under section 16 of this title; and(2) the offenses charged are not of apolitical nature.
(c) As used in this section, the term
“national of the United States” has themeaning given such term in section
101(a)(22) of the Immigration andNationality Act (8 U.S.C. 1101(a)(22)).
(June 25, 1948, c. 645, 62 Stat. 822; Apr.
24, 1996, Pub.L. 104-132, Title IV,§443(a), 110 Stat. 1280.)

143

RESOURCE MATERIAL SERIES No. 57§ 3182. Fugitives from State or
Territory to State, District, orTerritory
Whenever the executive authority of any
State or Territory demands any person asa fugitive from justice, of the executive
authority of any State, District, or Territory
to which such person has fled, and producesa copy of an indictment found or anaffidavit made before a magistrate of any
State or Territory, charging the person
demanded with having committed treason,
felony, or other crime, certified as authentic
by the governor or chief magistrate of theState or Territory from whence the person
so charged has fled, the executive authorityof the State, District, or Territory to whichsuch person has fled shall cause him to bearrested and secured, and notify the
executive authority making such demand,or the agent of such authority appointed
to receive the fugitive, and shall cause thefugitive to be delivered to such agent when
he shall appear. If no such agent appears
within thirty days from the time of thearrest, the prisoner may be discharged.
(June 25, 1948, c. 645, 62 Stat. 822; Oct.
11, 1996, Pub.L. 104-294, Title VI,§601(f)(9), 110 Stat. 3500.)§ 3183. Fugitives from State,
Territory, or Possession into
extraterritorial jurisdiction ofUnited States
Whenever the executive authority of any
State, Territory, District, or possession of
the United States or the Panama Canal
Zone, demands any American citizen or
national as a fugitive from justice who has
fled to a country in which the United Statedexercises extraterritorial jurisdiction, andproduces a copy of an indictment found oran affidavit made before a magistrate ofthe demanding jurisdiction, charging the
fugitive so demanded with having
committed treason, felony, or other offense,
certified as authentic by the Governor or
chief magistrate of such demanding144

jurisdiction, or other person authorized toact, the officer or representative of theUnited States vested with judicial
authority to whom the demand has been
made shall cause such fugitive to bearrested and secured, and notify the
executive authorities making suchdemand, or the agent of such authority
appointed to receive the fugitive, and shallcause the fugitive to be delivered to suchagent when he shall appear.
If no such agent shall appear within
three months from the time of the arrest,
the prisoner may be discharged.
The agent who receives the fugitive into
his custody shall be empowered totransport him to the jurisdiction fromwhich he has fled.
(June 25, 1948, c. 645, 62 Stat. 822.)§ 3184. Fugitives from foreigncountry to United States
Whenever there is a treaty or convention
for extradition between the United States
and any foreign government, or in cases
arising under section 3181(b), any justiceor judge of the United States, or any
magistrate authorized so to do by a courtof the United States, or any judge of a courtof record of general jurisdiction of any
State, may, upon complaint made underoath, charging any person found within his
jurisdiction, with having committed within
the jurisdiction of any such foreign
government any of the crimes provided forby such treaty or convention, or provided
for under section 3181(b), issue his warrant
for the apprehension of the person socharged, that he may be brought before
such justice, judge, or magistrate, to theend that the evidence of criminality may
be heard and considered. Such complaint
may be filed before and such warrant may
be issued by a judge or magistrate of theUnited States District Court for the Districtof Columbia if the whereabouts within the

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
United States of the person charged are notknown or, if there is reason to believe theperson will shortly enter the United States.
If, on such hearing, he deems the evidence
sufficient to sustain the charge under theprovisions of the proper treaty or
convention, or under section 3181(b), heshall certify the same, together with a copyof all the testimony taken before him, to
the Secretary of State, that a warrant may
issue upon the requisition of the proper
authorities of such foreign government, forthe surrender of such person, according to
the stipulations of the treaty or convention;and he shall issue his warrant for thecommitment of the person so charged to theproper jail, there to remain until such
surrender shall be made.
(June 25, 1948, c. 645, 62 Stat. 822; Oct.
17, 1968, Pub.L. 90-578, Title III, §301(a)(3),
82 Stat. 1115; Nov. 18, 1988, Pub.L. 100-690,
Title VII, § 7087, 102 Stat. 4409; Nov. 29,
1990, Pub.L. 101-647, Title XVI, § 1605, 104
Stat. 4843; Apr. 24, 1996, Pub.L. 104-132,
Title IV, § 443(b), 110 Stat. 1281.)§ 3185. Fugitives from country undercontrol of United States into
the United States
Whenever any foreign country or
territory, or any part thereof, is occupied
by or under the control of the United States,
any person who, having violated thecriminal laws in force therein by thecommission of any of the offenses
enumerated below, departs or flees fromjustice therein to the United States, shall,when found therein, be liable to arrest anddetection by the authorities of the UnitedStates, and on the written request or
requisition of the military governor or otherchief executive officer in control of suchforeign country or territory shall be
returned and surrendered as hereinafter
provided to such authorities for trial under
the laws in force in the place where suchoffense was committed.

(1)

Murder d assault with intent tocommit murder;(2) Counterfeiting or altering money,or uttering or bringing into
circulation counterfeit or alteredmoney;(3) Counterfeiting certificates or
coupons of public indebtedness,bank notes, or other instrumentsof public credit, and the utterance
or circulation of the same;(4) Forgery or altering and uttering
what is forged or altered;(5) E m b e z z l e m e n t o r c r i m i n a lmalversation of the public funds,
committed by public officers,
employees, or depositaries;(6) Larceny or embezzlement of anamount not less than $100 invalue;(7) Robbery;(8) Burglary, defined to be thebreaking and entering by
nighttime into the house ofanother person with intent tocommit a felony therein;(9) Breaking and entering the houseor building of another, whether inthe day or nighttime, with theintent to commit a felony therein;(10) E n t e r i n g , o r b r e a k i n g a n dentering the offices of theGovernment and publicauthorities, or the offices of banks,
banking houses, savings banks,
trust companies, insurance orother companies, with the intent
to commit a felony therein;(11) Perjury or the subornation of
perjury;(12) A felony under chapter 109A of
this title;(13) Arson;(14) Piracy by the law of nations;145

RESOURCE MATERIAL SERIES No. 57(15) Murder, assault with intent to kill,and manslaughter, committed on
the high seas, on board a ship
owned by or in control of citizens
or residents of such foreigncountry or territory and not under
the flag of the United States, or ofsome other government;(16) Malicious destruction of or
attempt to destroy railways,
trams, vessels, bridges, dwellings,
public edifices, or other buildings,
when the act endangers humanlife.
This chapter, so far as applicable, shallgovern proceedings authorized by thissection. Such proceedings shall be had
before a judge of the courts of the UnitedStates only, who shall hold such person onevidence establishing probable cause that
he is guilty of the offense charged.
No return or surrender shall be made ofany person charge with the commission of
any offense of a political nature.
If so held, such person shall be returnedand surrendered to the authorities incontrol of such foreign country or territoryon the order of the Secretary of State of
the United States, and such authorities
shall secure to such a person a fair andimpartial trial.
(June 25, 1948, c. 645, 62 Stat. 823; May
24, 1949, C. 139, § 49, 63 Stat. 96; Nov. 10,
1986, Pub.L. 99-646, § 87(c)(6), 100 Stat.
3623; Nov. 14, 1986, Pub.L. 99-654, § 3(a)(6),
100 Stat. 3663.)§ 3186. Secretary of State tosurrender fugitive
The Secretary of state may order the
person committed under sections 3184 or
3185 of this title to be delivered to any
authorized agent of such foreign
government, to be tried for the offense ofwhich charged.

146

Such agent may hold such person incustody, and take him to the territory ofsuch foreign government, pursuant to suchtreaty.
A person so accused who escapes may
be retaken in the same manner as any
person accused of any offense.
(June 25, 1948, c. 645, 62 Stat. 824.)§ 3187. Provisional arrest anddetention within
extraterritorial jurisdiction
The Provisional arrest and detention ofa fugitive, under sections 3042 and 3183 ofthis title, in advance of the presentation offormal proofs, may be obtained bytelegraph upon the request of the authority
competent to request the surrender of such
fugitive addressed to the authority
competent to grant such surrender. Such
request shall be accompanied by an express
statement that a warrant for the fugitive’sarrest has been issued within thejurisdiction of the authority making such
request charging the fugitive with thecommission of the crime for which his
extradition is sought to be obtained.
No person shall be held in custody undertelegraphic request by virtue of this section
for more than ninety days.
(June 25, 1948, c.645, 62 Stat. 824.)§ 3188. Time of commitment pending
extradition
Whenever any person who is committed
for rendition to a foreign government toremain until delivered up in pursuance ofa requisition, is not so delivered up andconveyed out of the United States within
two calendar months after suchcommitment, over and above the time
actually required to convey the prisoner
from the jail to which he was committed,
by the readiest way, out, of the UnitedStates, any judge of the United States, orof any State, upon application made to him

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
by or on behalf of the person so committed,
and upon proof made to him thatreasonable notice of the intention to makesuch application has been given to theSecretary of State, may order the person
so committed to be discharged out custody,
unless sufficient cause is shown to suchjudge why such discharge ought not to beordered.
(June 25, 1948, C. 645, 62 Stat. 824)

to pay the fees of such witnesses, the judge
or magistrate hearing the matter mayorder that such witnesses be subpenaed;
and the costs incurred by the process, andthe fees of witnesses, shall be paid in thesame manner as in the case of witnesses
subpenaed in behalf of the United States.
(June 25, 1948, c. 645, 62 Stat. 825; Oct.
17, 1968,Pub.L. 90-578, Title III, § 301(a)(3),
82 Stat. 1115.)§ 3189. Place and character ofhearing
Hearings in cases of extradition under
treaty stipulation or convention shall beheld on land, publicly, and in a room or
office easily accessible to the public(June 25, 1948, c. 645, 62 Stat. 824.)§ 3192. Protection of accused
Whenever any person is delivered by any
foreign government to an agent of theUnited States, for the purpose of beingbrought within the United States and tried
for any offense of which he is duly accused,
the President shall have power to take allnecessary measures for the transportationand safekeeping of such accused person,
and for his security against lawlessviolence, until the final conclusion of histrial for the offenses specified in thewarrant of extradition, and until his final
discharge from custody or imprisonment
for or on account of such offenses, and for areasonable time thereafter, and may
employ such portion of the land or naval
forces of the United States, or of the militia
there of, as may be necessary for the safekeeping and protection of the accused.
(June 25, 1948, c. 645, 62 Stat. 825.)§ 3190. Evidence on hearing
Depositions, warrants, or other papers
or copies thereof offered in evidence upon
the hearing of any extradition case shallbe received and admitted as evidence onsuch hearing for all the purposes of such
hearing if they shall be properly and legallyauthenticated so as to entitle them to bereceived for similar purposes by thetribunals of the foreign country from which
the accused party shall have escaped, andthe certificate of the principal diplomaticor or consular officer of the United States
resident in such foreign country shall be
proof that the same, so offered, areauthenticated in the manner required.
(June 25, 1948, c. 645, 62 Stat. 824.)§ 3191. Witnesses for indigent
fugitives
On the hearing of any case under a claimof extradition by a foreign government,
upon affidavit being filed by the person
charged setting forth that there arewitnesses whose evidence is material to his
defense, that he cannot safely go to trial
without them, what he expects to prove by
each of them, and that he is not possessedof sufficient means, and is actually unable§ 3193. Receiving agent’s authority
over offenders
A duly appointed agent to receive, inbehalf of the United States, the delivery,
by a foreign government, of any person
accused of crime committed within the
United States, and to convey him to theplace of his trial, shall have all the powers
of a marshal of the United States, in theseveral districts through which it may benecessary for him to pass with such
prisoner, so far as such power is requisite
for the prisoner’s safe-keeping.
(June 25, 1948, c. 645, 62 Stat. 825.)

147

RESOURCE MATERIAL SERIES No. 57§ 3194. Transportation of fugitive byreceiving agent
Any agent appointed as provided in
section 3182 of this title who receives the
fugitive into his custody is empowered totransport him to the State or Territory fromwhich he has fled.
(June 25, 1948, c. 645, 62 Stat 825.)§ 3195. Payment of fees and costs
All costs or expenses incurred in any
extradition proceeding in apprehending,securing, and transmitting a fugitive shallbe paid by the demanding authority.
All witness fees and costs of every nature
in cases of international extradition,
including the fees of the magistrate, shallbe certified by the judge or magistrate
before whom the hearing shall take place
to the Secretary of State of the UnitedStates, and the same shall be paid out ofappropriations to defray the expenses of the
judiciary or the Department of Justice as
the case may be.
The Attorney General shall certify to theSecretary of State the amounts to be paid
to the United States on account of said fees
and costs in extradition cases by the foreign
government requesting the extradition,and the Secretary of State shall cause said
amounts to be collected and transmitted
to the Attorney General for deposit in the
Treasury of the United States.
(June 25, 1948, c. 645, 62 Stat. 825; Oct.
17, 1968, Pub.L. 90-578, Title III, §301(a)(3), 82 Stat. 1115.)§ 3196. Extradition of United States
citizens
If the applicable treaty or convention
does not obligate the Unites States toextradite its citizens to a foreign country,
the Secretary of State may, nevertheless,order the surrender to that country of a
United States citizen whose extradition has
been requested by that country if the other148

requirements of that treaty or convention
are met.
(Added Pub.L. 101-623, §11(a), Nov. 21,
1990, 104 Stat. 3356.)

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’
PAPERSPARTICIPANTS’ PAPERS

INTERNATIONAL COOPERATION IN CRIMINAL MATTERS
ON EXTRADITION AND MUTUAL LEGAL ASSISTANCE
IN MALAYSIA
Abdul Jalal Bin Mohd Yunus*
I. INTRODUCTION
The world today has indisputedly opened
up with an intensification of international
relations in all areas. Crime previously
confined to the territorial limits of states
has now shed a harsh light on a new scene
with accruing international fluxes which
is becoming increasingly intense andcomplex.
Wi t h r e g a r d t o t h e m e a n i n g o finternational crime, it is generally defined,
as a crime which requires the cooperationof a foreign country in the process ofenforcing criminal justice and the crime
contains an international factor in termsof the perpetrator, victim, occurrence,
whereabouts of the perpetrator or locationof evidence.
The occurrence of international crime
has brought great problems toinvestigators in their efforts to obtainevidence and to locate their witnesses,
especially in foreign countries or toapprehend a fugitive abroad. In order toobtain evidence from a foreign country,
mutual legal assistance is employed andthe process in which a fugitive issurrendered from one country to anothercountry is referred to as extradition. The
objective of this paper is to focus on mutual
legal assistance and extradition in
Malaysia.

* Officer-in-Charge of Criminal Investigation, Royal
Malaysia Police, Kedah, Malaysia

II. BASIS FOR EXTRADITION AND
MUTUAL LEGAL ASSISTANCE
There are two bases for extradition: Firstly, International deterence andgoodwill. An extradition request from one
country to anther country between which
there is no extradition treaty is based uponinternational comity. In Malaysia, if there
is no such treaty with the requesting
country, the law provides a discretion to the
Minister of Home Affairs to allow theextradition, if he deems it fit to do so.
Secondly, An extradition made based on
bilateral treaty or multilateral convention
which obligates the member countries toabide by the terms. If the requesting
country meets the requirements for
extradition, the request must be honoured
otherwise there could be a violation of its
international obligations. Such a treaty is
known as “Treaty Prerequisite Countries”.
Malaysia, Thailand, Indonesia and theUnited States have adopted this policy.
Please refer to the relevant treaties atappendix “A, B and C”.
As regard to mutual legal assistance,
there are three bases for it, namely, aninternational treaty and international
administrative agreements. The first twobases are the same as for those in
extradition. The third basis is found in aninternational agreement with Interpol
which is taken by police agencies ofparticipating countries. In Malaysia, therole of the police in matters of mutual legal
assistance is shouldered by the National
Central Bureau/Interpol of Criminal
Investigation Department. This division

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RESOURCE MATERIAL SERIES No. 57
will act as a coordinator in providing
appropriate assistance to requesting
countries.
III. REQUIREMENTS OF
EXTRADITION
A. The Law
The extradition process in Malaysia isgoverned by the Extradition Act 1992. The
Act applies to countries having treaties
with Malaysia and in a case where there
are no treaties between the parties, the law
provides a discretion to the Minister ofHome Affairs to allow the extradition if hedeems it fit to do so. Apart from that, inorder for the existing law to be enforced,
two inherent conditions are required tosatisfy the elements of extradition namely,(a) there must be a fugitive criminal and(b) the offence committed must be an
extradition offence.
As regards fugitive criminals, this meansa person who is accused of or convicted ofan extradition offence committed within
the jurisdiction of another country. The
offender must be a citizen of the country towhich he is seeking a transfer and theconviction must be final. The case cannot
be pending, in the sentencing stage or
directly under appeal. This also includes
appeals filed by an Attorney-General in acountry which permits such appeals as well
as appeals filed by the prisoners
themselves or their lawyers.
B. Categories of Offences Which
Entitle Extradition
Under Malaysian Law, there are twocategories of offences which entitle therespective authorities to request the returnof fugitive criminals. The offences are as
follows: -150

1. Extradition Offence.
An extradition offence refers to any
offence however described including a fiscal
offence:a. w h i c h i s p u n i s h a b l e w i t h
imprisonment for not less than one
year or with death under the laws ofa country having extradition treaties
with Malaysia or countries where the
Minister had granted an extradition
order; andb. which, if committed within thejurisdiction of Malaysia, ispunishable under the laws of
Malaysia with imprisonment for notless than one year or with death.
Provided that, in the case of an extraterritorial offence, it is so punishable under
the laws of Malaysia, if it took place incorresponding circumstances outside
Malaysia.
2. Extra-Territorial Offences.
The offences given the status of extraterritorial offences are: a. Offences against the State (Chapter
VI Penal Code);b. Offences under the Official Secrets
Act 1972 and the Sedition Act 1948;
c. Offences under the Prevention of
Corruption Act 1961;
d. Offences which consist of attempts orconspiracies to commit, or abeting in
the commission of, any offence
described as above: Extradition Act
1992.
3. Offences Committed At Sea Or Air.
Where an offence in respect of which thereturn of a fugitive criminal is sought wascommitted on board any vessel on the highseas or any aircraft while in the air outside
Malaysia which comes into any port or
aerodrome in Malaysia, the Minister andany magistrate having jurisdiction in such

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
port or aerodrome may exercise the powers
conferred by the Extradition Act 1992.
C. Procedure of Extradition
The procedure of extradition must be
strictly followed. The failure of therequesting countries to comply with it will
result in their application being
dishonoured. The law in Malaysia requires
the following steps to be adopted: (i)The requesting country issues awarrant of arrest for the fugitive.
The warrant shall be submitted
through diplomatic channels to
the Minister (Minister of Home
Affairs). If the Minister issatisfied that the warrant wasissued by a person with lawfulauthority, he then authorises amagistrate to issue a warrant for
the apprehension of the fugitive
criminal. The Minister may
refuse to authorise the magistrate
to issue a warrant, if he thinksthat the offence is political incharacter or which is not an
extradition offence.

(ii)

A magistrate may issue aprovisional warrant based on
information (for instance, from
INTERPOL) where the Ministermust then be notified. The
Minister, if he thinks fit, may
cancel such a provisional warrant.

(iii)

The “fugitive criminal” shall be
remanded before he is brought tothe court for an inquiry into thecase. The Session Court has
jurisdiction to hear extradition
cases. The court, after receiving
enough evidence, shall decide
whether a prima facie case has
been established against the
fugitive, and thus commit him
and report to the Minister. If a

prima facie case has not been
established, the court will thendischarge him.
(iv)

Fifteen days after his committal
to prison or if the fugitive
challenges his detention by filinga writ of habeas corpus in theHigh Court, after the conclusionof the case, the Minister mayorder the fugitive to be handed
over to the requesting country.

(v)

The fugitive criminal may also
waive the committal proceedings
and hence be subjected to any
orders.

(vi)

Fugitive criminals who areserving sentences in Malaysia
may also be returned to therequesting country for the
purpose of trial against him. He
will then be returned to Malaysia
to complete his sentence andsubsequently be returned to therequesting country.

(vii)

With regard to Brunei
Darussalam and the Republic ofSingapore, special provisions areprovided for in the Act, where awarrant issued by both countries
can be executed in any part of
Malaysia after it has beenendorsed by a magistrate in
Malaysia. This also known as
Simplified Extradition.

IV. RESTRICTIONS ON RETURN OF
FUGITIVE CRIMINALS
A. Mandatory Ground for Refusal
Section 8 of the Extradition Act 1992
provides that a fugitive criminal shall not
be surrendered to a country seeking his
return in a situation where:151

RESOURCE MATERIAL SERIES No. 57- the offence in respect of which his
return is sought is of a politicalcharacter. However, the following
offences shall not be held to be
offences of a political character in
relation to a country which has madecorresponding provisions in its laws:
a. murder or other wilful crime
against the person of a Head ofState or a member of the Head ofState’s immediate family;b. an act which under a multilateraltreaty to which Malaysia and thecountry seeking the return of the
fugitive criminal are parties,
constitutes an offence for which aperson will be extradited orprosecuted notwithstanding thepolitical character or motivationof such act;c. a n y a t t e m p t , a b e t m e n t o rconspiracy to commit any of theforegoing offences;- the request for his surrender althoughpurporting to be made for an
extradition offence, was in fact madefor the purpose of prosecuting or
punishing the person on account of his
race, religion, nationality or politicalopinions;- he might be prejudiced at his trial or
punished or imprisoned by reason of
his race, religion, nationality orpolitical opinions;- prosecution for ‘the offence in respectof which his return is sought is,according to the law of that country,
barred by time;- the facts on which his surrender or
return is based or any lesser offence
proved by the facts on which that
return was grounded unless theconsent of the appropriate authority

152

in the requested country has beenobtained.
- a fugitive shall not be extradited toanother country for trial or
punishment for any offence that isalleged to have been committed
unless the consent of the appropriate
authority in the requested country has
been obtained.
B. Discretionary Ground for Refusal
In addition to the mandatory grounds forrefusal, most treaties also contain anumber of discretionary or optional
grounds. In Malaysia, the Act gives wide
discretion to the Minister, who may refuse
to allow an extradition if he thinks it would
be unjust or inexpedient to do so for reasons
such as the trivial nature of the offence or
the application for extradition was notmade in good faith or in the interest ofjustice or it was made for political reasonsor for any other reason.
The Minister may, having regard to thecircumstances of the case for which
simultaneous countries made therequisition, return the fugitive criminal tosuch country as he thinks fit. The Minister
may also refuse the surrender if the fugitive
criminal is a citizen of Malaysia or forwhich the extradition offence is one overwhich the courts in Malaysia havejurisdiction. Where a country having no
extradition treaty with Malaysia makes arequest for the extradition of a fugitive
criminal, the Minister may personally, if
he deems it fit to do so, give special
direction in writing allowing such fugitive
criminal to be extradited to the requested
country after the provisions of the Act havebeen complied with.

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
V. ESSENTIAL PRINCIPLESADOPTED BY MALAYSIAREGARDING EXTRADITION
A. Principle of Double Criminality.
For the rule to apply it must be an eventthat is defined as a crime in the territoryof the requested country and also in therequesting one. The right to claim an
individual from a state may not be
acceptable if its legislation does notconsider the event as punishable according
to its own domestic law. This requirement
must exist at the time the punishable act
takes place and must continue until thehanding over occurs. In Malaysia, theprinciple was established in the case of PP
v Lin Chien Pang (1993 ) 2 MLJ34.
B. Principle of Speciality
The rule of speciality means therequesting country is under a duty not totry or punish the offender other than thatfor which he has been extradited. The ruleguarantees that all the requirements of theextradition process (such as doublec r i m i n a l i t y, e x t r a d i t a b l e o f f e n c e s ,reciprocity and, etc) are observed by therequesting state. The purpose of this rule
is to prevent the requesting state fromabusing the extradition process by way ofusing legal subterfuges to obtain
extradition for on unavowed goal. In otherwords it will protect the right of an
extraditee against any violation.
C. Rule on Prime Facie Cases
In order to enable a fugitive criminal to
be extradited to a requesting country, thecourt of the requested country shall decide
whether a prima facie case has been proved
against the fugitive. If a prima facie casehas not been established, the court shalldischarge the fugutive. However the
statutory law in Malaysia does not define
what is prima facie case is in theextradition process. Article No. 5 of theModel Treaty regards a prima facie caseas “sufficient proof in a form acceptable
under the law of the requested state,established according to the evidentiarystandards of the state that a person is aparty to that offence”.
From the definition, it is clear that the
prima facie case embodies a dual concept
namely, sufficiency and admissibility ofevidence under the law of the requested
state. This requirement must be fulfilled
by both requested and requesting country.
The majority of common law jurisdictions
including Malaysia still require andrecognise this standard.
D. Political Offences
The Malaysia Extradition Act 1992
states that a fugitive criminal shall not besurrendered to a country seeking his returnon the basis of political character / offences.
However, no clarification has been madeby local courts pertaining to the definitionon the offence of a political character.
However in the United Kingdom, thepolitical offence has been defined by the
judiciary. In the case of “Regina v. Governorof Brixton Prison, Ex - parte Schtraks(1964) AC 566 at pg. 591 - 592 the court
defined that, “offence of a politicalcharacter” is that the fugitive is at odds
with the state where he applies for his
extradition on some issue connected withthe political control or government of thecountry. The analogy of political in suchphrases as “political refugee”, “politicalasylum” or “political prisoner”. In thisregard, since Malaysia’s courts practice thecommon law system, the definition in theabovementioned case is acceptable indeciding the nature of offences classified
as political offences. Perhaps the scope ofthe definition may be wider depending on
the situation which suits local conditions.

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RESOURCE MATERIAL SERIES No. 57
VI. EXTRADITION AGREEMENTS
Presently, Malaysia has treaties with theRepublic of Indonesia, the Kingdom ofThailand and the United States of America
for the mutual surrender of fugitive
criminals. As for the Republic of Singapore
and Brunei Darussalam, special provisions
are made in the Extradition Act 1992, forthe similar purpose by way of warrants.
The treaties made are as follows:
A. Extradition (Republic ofIndonesia) Order l975
This treaty was signed between
Malaysia and Indonesia at Jakarta on 7
June 1974 and came into force on 11 August
1 9 7 5 . O n s i g n i n g t h i s t r e a t y, t h eGovernment of Malaysia and theGovernment of Indonesia undertakes tosurrender fugitives to each other, subject
to the provisions and conditions as laid
down in the treaty.
Extraditable crimes are as listed in thetreaty and they include abetments andattempts to commit such crimes.
Restrictions on extradition are for thefollowing reasons:a. Crime regarded as political crime.
b. The right to refuse extradition of
its nationals.
c. May refuse to extradite theoffender if the offence is extraterritorial.
d. May refuse to extradite if therequested party is proceeding
against the fugitive criminal inrespect of crimes for which theextradition is requested.
e. Causes double jeopardy to thefugitive criminal (Non is in idem).
f. Rule of speciality to be adhered.
In cases of emergency, the competentauthorities of the requesting party may
request provisional arrest. Decisions inthis matter will be made by the competent154

authorities of the requested party
according to its laws. It can be madethrough the inspector General of Police in
Malaysia or the National Central Bureau
in Indonesia or through diplomaticchannels or the INTERPOL.
So far as the law permits, the requested
party shall seize and hand over property
to the requesting party if such property,(a) is required as evidence, and (b) was
acquired as a result of a crime and at thetime of arrest he was found in possession
or subsequently discovered. The property
shall be handed over even if the extradition
could not be carried out owing to the deathor escape of the fugitive criminal. Any rightin which the requested party or any otherState may have acquired in the said
property shall be preserved. Where theserights exist, the property shall be returned
without charge to the requested party assoon as possible after the trial. Expenses
incurred in the territory of the requested
party by reason of extradition shall beborne by that party.
B. Anglo - Siamese Extradition
Treaty 1911
This treaty which was enforceable wasmade between His Majesty the King of theUnited Kingdom of Great Britain and His
Majesty the King of Siam in 1911. The
provisions and procedures of the treaty arequite similar to the Extradition Act 1992.
In 1992 the Government of Thailand
came up with a new draft treaty to update
and repeal the 1911 treaty which had not
yet been finalised. The new draft treaty is
modified with the inclusion of the following
provisions:a. The obligation to extradite
includes persons who have beenproceeded against, have been
charged with, have been foundguilty or are wanted for the114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
enforcement of a judiciallypronounced penalty for committing
an extraditable offence by the
judicial authority of the requested
State;
b. Extraditable offence includes theprinciple of the double criminality
rule where the offence ispunishable under the laws of bothcontracting parties;
c. Restrictions to extradite with thefollowing reasons.
i. Offence is political or military
in nature;ii. Dual jurisdictions;iii. Double jeopardy;
iv. Capital punishment;
v. Lapse of time;vi. Own nationals.
C. Extradition (United States ofAmerica) Order 1985
By an exchange of notes on 17 November
1958 an arrangement was made between
the Federation of Malaya and the UnitedStates of America for the mutual surrenderof criminals in accordance with the treaty
dated 22 December 1931 concluded
between His Majesty the King of theUnited Kingdom and the President of theUnited States of America. With the powers
conferred on the Yang Di Pertuan Agong,
this Order was made in 1985.
This treaty allows the High Contracting
Parties to deliver up to each other, undercircumstances and conditions stated, those
persons being accused or convicted of any
crimes or offences which are extraditable
and are committed within the jurisdiction
and found within the territory of each other.
Restrictions on extradition’s are for thefollowing reasons:a. Double jeopardy;b. Lapse of time;c. Crime of political character;d. A lesser crime other than thecrime extradited.

Sufficient evidence to be given before theextradition should be produced within twomonths. If the fugitive criminal is claimed
by other States extradition shall be granted
to the State whose claim is the earliest in
date unless the claim is waived. All articles
seized in possession of the criminal fugitiveat the time of his apprehension may beserved as proof and shall be handed overwhen extradition takes place. Expenses
connected with the extradition shall beborne by the party making the request.
VII. MUTUAL ASSISTANCE IN
CRIMINAL MATTERS
Assistance in the investigation andprosecution of criminal activities in aninternational binding sense, is a far more
recent development. Given the differencein legal systems both procedural andsubstantive, including rules as to theadmissibility of evidence, it should comeas no suprise that the difficulties in thisarea of international co-operation are evengreater.
Considering the international featuresof many organized crime groups andcriminals, it must be acknowledged that nocountry by itself can be effective inneutralising them. It is important fornations having problems with the same
crime groups to share their informationand experiences to curtail transbordercriminal activities.
In the absence of formal legal treaties,
experience has shown that regional
meetings between law enforcement agencies
play a big role in promoting cooperation andmutual understanding between states.
The Royal Malaysian Police (RMP) has
always viewed regional cooperation as apractical means in pursuing a criminal
matter outside its jurisdiction. The RMP
has the following arrangements to foster

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RESOURCE MATERIAL SERIES No. 57
cooperation amongst the Police Forces inthis region:
1. T h e A n n u a l C o n f e r e n c e o f t h e
Association of National Police Forcesof Asean (ASEANAPOL)-

a forum of Asean Chiefs of Police
to discuss, exchange intelligence,
mutual assistance, and others;-

The Aseanapol Database System
which was fully implemented at
the end of 1996. Through thisnetwork, the NCBs of eachcountry will be able to exchange
criminal information by computer.

Criminal Activities. It is held
alternately in each country to
discuss and exchange intelligenceon criminal matters.
-

The Malaysian CID also conductsa special bilateral forum with theRoyal Thai Police of the Southern
Region to discuss crime related
matters occurring along thecommon borders of Malaysia/
Thailand.

-The Narcotics Department of the
RMP also maintains a special
relationship with the Office of the
Narcotics Control Board, Thailand
to discuss drug related matters.

2. Malaysia/Singapore Liaison Meeting
5. Malaysia/United States of America-

Held every three months. The
Narcotics Department of the RMP
also maintains a special
relationship with the Central
Narcotics Bureau (CNB) of
Singapore. Regular meetings andexchange of information/
intelligence have in the past
resulted in the successful
detection and apprehension of
criminals in both countries.

-

6. NCB/Interpol Networking-

The Interpol network has given
much assistance to the RMP in
dealing with foreign offenders andin reciprocity the Malaysian NCB/
Interpol handles all requests andrenders assistance to foreigncountries for any enquiries orapprehension of fugitive
criminals.

-

For countries which do not haveany bilateral/special arrangementwith Malaysia, a request can bemade through the diplomaticchannel of NCB/Interpol Branchfor extradition purposes.

3. Malaysia/Indonesia RAPAT Conference-This conference is held annuallyat alternative venues to discuss/exchange intelligence on crime
related matters. Both countries
have a bilateral treaty that allows
fugitive criminals to be arrested
and extradited based on theprincipal of reciprocity.

4. Malaysia/Thailand Joint Committee-

156

Police forces of both countries
conduct an annual Joint Malaysia/
Thai Working Committee on

The RMP maintains good
relations with the American law
enforcement agencies, such as the
DEA and the FBI, especially in thefield of training and the exchange
of information/intelligence to curbtransitional crimes.

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS-

International “ Red Notice” for the
purpose of provisional arrests canalso be sent through NCB/Interpol
office for the purpose of
extradition.

7. Scope of Mutual Assistance in Criminal
Matters
Malaysia has not ratified the UN Model
Treaty and as such we do not have any
legislation on mutual assistance to otherforeign enforcement agencies. However thescope of assistance that can be given by theRoyal Malaysia Police to our counter-parts
are as follows:a. To carry out investigations byinterviewing witnesses after
information received from requesting
countries and inform the results ofinvestigations to the requesting
countries. This is normally done
though INTERPOL.
b. Confirming the whereabouts ofwanted persons of the requesting
country.
c. If statements are required by therequesting country this can only bedone through an affidavit before acompetent authority. This can only
be made through the witnesses
voluntarily.
d. The requesting country may send
their investigating officers to
Malaysia for discussions regarding
the case they are investigating.
Interviews of witnesses orinterrogation will be done by the
Malaysia police and he may be inattendance.
e. P r o v i d i n g i n f o r m a t i o n f o r
investigative use of the requesting
country.

VIII. CONCLUSION
Malaysia in its efforts to combat
transnational criminal activities is everwilling to extradite a fugitive criminal as
long as it satisfies all requirements as
required by the law. In cases where there
is no treaty, a fugitive criminal may be
extradited upon the discretion of the
Minister.
The extradition process is a slow process
as it needs to fulfil all the necessary
procedures before a fugitive criminal canbe surrendered to a requesting country.
This could take months as the fugitive
criminal is allowed to seek redress by a writof habeas corpus from the High Court of
Malaysia. The alternative action that canbe taken by the authorities is to expel the
fugitive criminal from Malaysia throughthe process of deportation. In this instanceonly the immigration law of Malaysia is
applied. However the Imigration
Department requires reasonable
justification to implement this process for
a foreigner. Reasons could be given on thebasis of expiration of travel documents oran invalid travel document, violations of
Imigration Laws, etc.
We believe in close cooperation amongst
the law enforcement officers of otherStates/Countries so that we can check thecriminals in their endeavours to commit
cross-border and global transnational
crimes.

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TRANSNATIONAL ORGANIZED CRIME AND THE ROLE OF
EXTRADITION & MUTUAL LEGAL ASSISTANCE TREATIES
Sotonye Leroy Wakama*
I. INTRODUCTION
Transnational organized crime will
without a doubt be the yardstick by which
the performance of governments and theirlaw enforcement agencies will be judged in
the 2lst century. It will also probably posethe most problematic, prolific andpotentially devastating phenomenon everencountered by these institutions in thenormal course of their duties. However,despite the considerable attention that themedia devotes in most countries to street
and organized crime given its audacious,
violent and inimical activities, policy
makers and law enforcement agencies
appear not to have understood the sheer
magnitude of the potential dangers thatthese nefarious acts pose to national
security, the economy and society ingeneral. The issue is all the moreworrisome in the developing world, whichplays host to a number of these criminalorganizations, but as yet has failed to fully
perceive of its dangers.
II. FORM, IMPACT & EFFECTS OFORGANIZED CRIME
Transnational organized crime has
expressed itself in many forms. The
narcotics trade, money laundering, arms
trafficking, in human beings, stolen
vehicles and artifacts, terrorism,
prostitution, international financial fraud,
trade in environmentally dangerous andendangered species, counterfeiting, forgedand stolen travel documents and otherforms. Whichever organized crime or
combination of crimes is adopted, theypotentially have the same debilitating* Nigeria

158

effects on the host and targetedcommunities. All too familiar is thedestructive influence of narcotics, buttrafficking in weapons and human beings,
as well as financial fraud, have an equally
adverse impact on the health and financial
well being of the affected countries. Arms
smuggling could initiate and exacerbate
regional conflicts particularly on the
African Continent and in Eastern Europe
where several skirmishes are on going.
International prostitution andpornography rings have health and social
consequences. The illicit trade inendangered species may well haveenvironmental repercussions. To cap it all,the laundering of monetary profits derived
from these activities substantially
undermines the financial systems and thus
the economies of the affected nations.
The impact of organized crime may varyin differing societies but is likely to be moredevastating in developing societies where
it may supplant or exert considerable
control over the state by filling the gaps inthe provision of social amenities. This has
to some extent also been reflected ininstances where persons of “proven”
criminal background have found their way
into a nation’s legislature. In such
vulnerable environments as is depicted byfragile infant democracies, organized crime
can secure the co-operation of influential
government officials in the legislature,
executive and judiciary to propagate its
ends. It must be realised however, that
there is no government completely immune
to the activities of organized crime, or
justice system that can guarantee control,and certainly no financial systems thatwould not want to benefit from its gains.

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Thus law enforcement agents of every hue
must be open minded and prepared for theconfrontation, which will manifest itself not
only in different forms, but from different
quarters. Nevertheless, for all its forms
and potentials to destabilise governments,
these acts are primarily criminal.

launder funds and thus should also betargeted for assistance in this fight. All
these factors have affected tremendously
the ability of these unwholesome
fraternities to circumvent the various legal
obstacles that may well have hitherto,hindered their growth.

The reasons for the phenomenal“successes” of organized crime are notfarfetched. Like any business enterprise
where there is demand, opportunity,studied and appropriate investment, there
are likely to be returns. Criminal
enterprise is no exception. However, theextraordinary profits accurable toorganized criminal enterprise have further
been enhanced by technologicaladvancements that have reduced the world
to a global village. Communication, travel,
information through computer links andthus knowledge is now available atmoderate expense and the press of a button
to any discerning organization orindividual. With the resulting
globalisation of the world economy
organized crime has assumed new
dimensions. Co-operative ventures
between ethnically diverse criminal groups
have resulted to hitherto unimaginablesuccesses in criminal endeavours. One only
needs to examine the Nigerian scamenterprise to understand this. Other
examples abound. The spectacular profits
derivable from transnational criminal
enterprise are further used in thecommission of a myriad of financial crimes,
in a usually successful attempt to launder
the illegitimate financial resources. The
common denominator in transnationalorganized crimes therefore, is theinvolvement of financial institutions. It
follows therefore that the management ofthese institutions has a crucial role to playin the resolution of this crisis. Non-bankfinancial institutions such as exchange
houses, insurers, brokers, mortgagors,
importers and exporters are also used toIII. REMEDY
From the point of view of policy makers
and law enforcement agents, a thoroughand comprehensive understanding oforganized crime - its characteristics andoperational methods - is crucial. As longas emphasis is placed on its manifestation(usually at the street level), rather than its
all-encompassing and pervasive influenceon the entirety of society, then organizedcrime shall blissfully thrive for long.
Unfortunately, law enforcement agencies
in the developing world particularly, whosecountries play host to a number oftransnational criminal organizations, areleast prepared to combat them. The
existence of these organizations is only
recently being acknowledged. Worst still
however, is the fact that almost all law
enforcement agents especially in the West
African sub-region receive only communitybased police training, and hardly any
specialised training. Crime prevention
strategies are almost exclusively directedto the street level, with little or no attention
or realisation that more damaging activity
exists beyond. The truth unfortunately, isthat many countries that are havens fororganized crime neither have the legal
infrastructure or the law enforcement
capabilities to combat these crimes.
Developing nations like Nigeria for
instance, are further hampered by theirabysmal failure in record keeping. Where
statistics are kept, they can rarely be relied
upon as all too often other considerations
play a role in their compilation. Swings in
the trend and volume of criminal activity

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RESOURCE MATERIAL SERIES No. 57
are recognised through the increase incomplaints and the resulting volume ofwork, rather than the patient recording
and analysis of statistical data. Where
data is recorded and analysed, it is throughthe painstaking and often frustrating
manual method of entry and retrieval.
Furthermore, information on criminal
activity is almost exclusively considered
the preserve of traditional law enforcement
agencies, without the comprehension thatmonetary data is also obtainable from theCentral Bank or Treasury; and that trade
statistics from legitimate corporations andindustries also grant an indication of thecost and extent of organized criminal
activity.
IV. ORGANIZED CRIMINAL
ACTIVITY IN NIGERIA
Nigeria has like most other countries
had its fair share of organized criminal
activity. Thankfully, what activity there iswhen compared to other regions in theworld, is clearly in its infancy. However,as observed above, this has not given room
for complacency as we fully realise ourvulnerability and the potential dangers to
our already struggling economy.
In the course of the last ten years,
organized crime has manifested itself in
Nigeria in the forms of stolen vehicles andartefacts, small-scale arms trafficking, inhuman beings and international
prostitution, forged and stolen travel
documents, and international financial
frauds for which we are perhaps best
known. The recorded cases of terrorism
have since been discovered to be locallymotivated and executed. The cases ofstolen artefacts and vehicles, arms
trafficking, international prostitution andfinancial crimes are presently the mostbothersome. The methods employed in
executing these crimes within Nigeria andthe West African sub-region will now be
briefly examined.
160

Vehicles are stolen off the streets ofNigeria in two principal ways. The firstand less traumatic involves the theft ofunattended cars using skeleton keys and“hot wiring” techniques. The second
method deploys the use of violence andfirearms and often results in injury,
maiming and the loss of life. In both cases,
the stolen vehicles, sometimes in convoy,
are driven across borders to neighbouring
countries where they are either
cannibalised or sold holistically after few
distortions.
The stealing of cultural artefacts whichhave great traditional and in some cases
spiritual value has in recent times been on
the increase. It is postulated that the endusers perhaps find a correlation between
the age of the artefact and its aesthetic
value. For the most part these artefacts
appear to be stolen with the connivance of
security guards and soon thereafter are
smuggled out of the country in ingenious
ways.
Instances of arms trafficking has
generally been isolated and far between.
However, with the recent conflicts along theWest African coast an increased number ofarms have found their way into the country
through methods which suggest careful
but unlawful planning and deliberation.
U n f o r t u n a t e l y, t h e s e w e a p o n s a r e
subsequently used to commit felonious
offences, which result in permanent
impairments, mutilation and death.
In Nigeria, human trafficking andinternational prostitution are virtuallysynonymous. Italy appears to be the prime
target of destination in Europe thoughother countries have had their fair shareof the influx. This particular crime for the
purpose of prostitution will be a bit moredifficult to regulate principally because the“victims” are willing participants to thecrime, who see the enhancement of their

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
future in a foreign land through thispractise and the fact that no law against
prostitution exits in Nigeria.
International financial crimes, theAdvance Fee Fraud scam in particular, arewhat Nigerians are perhaps best known for.
The frauds executed by Nigerians, usually
on foreigners in the western world take on
diverse forms. They include, but are notexclusive to, the transfer of funds fromover-invoiced contracts, contract fraud on
goods and services, real estate fraud,currency conversion scams, the sale ofcrude oil scams, etc.
V. EXTRADITION & MUTUALLEGAL ASSISTANCE TREATIES AS
A SOLUTION
If the growth of transnational crimes is
to be stemmed, it is obviously going torequire the co-operation of all countries not
only affected, but also concerned by its
development. However, an understandingof the nature of the crime and its differing
effects on various regions of the world, anddivergent areas within a region must be
appreciated. Attention will naturally focus
on law enforcement but all sectors of society
have a role to play. Law enforcement
agents must be trained however torecognise organized crime, which means adeparture from the more traditional andconservative approaches to crime
resolution. Not only does organized crime
require specialised study and training, it
requires innovative thought, initiative anda disciplined will. Policy makers must also
be ready to devote resources on a par withthose of the criminals, and legislate
appropriately if it is hoped to achieve any
meaningful progress.
A direct response to the growth andmenace of organized crime has been
Extradition and Mutual Legal Assistance
Treaties, the latter of which is a relatively

recent development. They are primarily
agreements between consenting nations to,on the one hand deliver to justice, persons
within their territories who havereasonably and legally been shown tocommit acts in defiance of the law, and on
the other, grant assistance in the detectionof a crime. The prime objective is toimprove on the effectiveness of judicial
assistance and facilitate its procedures.
Communication in respect of requests for
extradition and legal assistance in Nigeria
is usually between the Federal Attorney
General and Minister of Justice and theCentral Justice Department of the country
involved. The treaties usually take on asimilar form and include agreements
regarding the summons of witnesses,
taking down the testimony of witnesses,
production of documents and records,
locating and identifying persons orevidence, serving documents, executing
requests for searches and seizures,
collection of fines and other forms ofassistance not prohibited by the laws of theparticipating states. Generally, theadvantages of these treaties are only open
to the prosecution (the State); the defence
is required to obtain materials to facilitate
its case under the laws of the host country.
The wording and implementation of thesetreaties however may vary given thenations involved and the type of criminal
activity targeted, or indeed the criminal
who is the subject of investigation.
As stated above, Nigeria is in its infancy
in respect to law enforcement andorganized criminal activity. It has only inthe last ten years entered Mutual
Assistance Treaties with other nations, theratified number of which is not
immediately clear. This list is not however
exhaustive. At the time of writing thisreport the statistics on requests to and by
Nigeria in the last ten years was not
immediately available. However, there is

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RESOURCE MATERIAL SERIES No. 57
a consensus, that very few requests havebeen received. It may be that a greaternumber of requests will now be received
as Nigeria has democratised.
VI. NIGERIA’S EXTRADITIONPOLICIES
Nigeria’s Extradition policies have inprinciple remained the same since 1957,
and include the following:
i.

ii.

iii.

iv.

v.

vi.

The offence for which a fugitive isrequested must not be of a political,
racial or religious nature;
Request must be processed withreasonable evidence of culpability
without which it may be refused.
There must be an assurance thatthe subject will only be tried andpunished if convicted for the offence
stated in the application of therequesting state.
Where the subject is alreadyserving a jail term, he will not be
extradited until the completion of
the sentence.
The fugitive will only be extradited
to the requesting country, which
does not have the right to further“extradite” him to a third country.
T h e r e m u s t b e r e c i p r o c i t y,otherwise Nigeria will not extradite
its citizens to a country, which given
the same facts would not haveextradited their national to Nigeria.

A. Request For Extradition By
Nigeria: Procedure
Before Nigeria makes a request to any
country, the police will conduct a thoroughinvestigation and assemble applicableevidence. On satisfactory completion of theinvestigation, the case will be filed in a
Magistrates Court, and if in the opinion of
the presiding magistrate a prima facie casehas been established, a warrant of arrest

162

against the subject will be issued. The casefile (in duplicate) will then be forwarded to
the Ministry of Justice for vetting, andupon approval, the Minister willcountersign the warrant of arrest and makeformal representation to the country
concerned.
B. Request For Extradition Made to
Nigeria: Procedure
In the case of a request being made to
Nigeria for the surrender of a fugitive, therequesting nation, (if a treaty exists), will
apply for the extradition of the fugitive to
the Federal Attorney General and Ministerof Justice, through the Ministry of Foreign
Affairs. After examination of the request,
the Minister of Justice may if he deems it
fit, direct the Inspector General of Police
to ensure the arrest and interrogation of
the fugitive with respect only to theallegation contained in the request. The
suspect will subsequently be arrested andbrought before a Magistrate who will
determine whether there is sufficientevidence to justify his being charged withthe alleged offence. If the magistrate is sosatisfied, the subject will be remanded inprison, and a report sent by the Magistrate
to the Minister of Justice, awaiting adecision as to whether extradition can befulfilled or not. The subject may appeal
provided the appeal is lodged within 7 days.
The subject (depending on the offence inquestion) may also be released on bailaccording to laid down procedures. If his
appeal fails, he must be surrendered within
30 days.
VII. NIGERIA’S POLICIES ON
PROVIDING LEGAL ASSISTANCE
Nigeria has only in the last 15 years
concluded agreements with various nations
on Mutual Legal Assistance in criminal
investigation. In most of these agreements,
there is a common refrain in Nigeria’s

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
policies, which include inter alia:i.

That there must be an agreement
on legal assistance with therequesting state.
ii. The object of the request must be
stated. Either the procuring offurther evidence for a suspectalready charged to court or an
exploratory investigation to gather
facts and evidence against an
unidentified suspect. In the caseo f t h e l a t t e r, t h e c r i m i n a lproceedings must be open to appeal.
iii. Precise data on the subject matterand subject will be provided. E.g.
names, dates of birth, profession/
occupation, known addresses,
description/likeness etc.
iv. Where the recording of testimony
or the search and seizure ofproperty is required, an elaborate
questionnaire and description ofevidence is necessary.
v.
An assurance that will be giventhat all evidence and information
obtained regarding the request will
only be used against the suspect in
the allegation stated in the request.
vi . The allegation so stated must not
be of a political, racial or religious
nature.
vii. Requests may be refused if it could
jeopardise the sovereignty, security,
public order or other essential
interests of Nigeria.
A. Types of Assistance Granted
Subject to the terms of the individual
agreements, the following types ofassistance are usually given:
i.
ii .
iii.
iv.
v.

Recording of statements;
Service of documents;
Execution of searches and seizures;
Surveillance physical andelectronic;
Provision of documents or otherrecords;
vi. Collection of fines;
vii. Location and identification ofsuspects;
viii. Other requests formally agreed
upon.
B. Reasons for Rejecting Requests
In some instances, it is necessary to
reject requests. These rejections, few or
non-existent as they may be, are usually
hinged on one of the following:i.

Lack of valid co-operation or
agreement;
ii. The lack of an equivalent offencein Nigerian criminal laws;iii. The offence being of a political,
racial or religious nature;iv. Insufficient evidence;v.
If the requesting nation does not
permit the extradition of its
nationals in similar circumstances;vi . Existence of the death penalty.
VIII. PROCEDURE FOR GRANTINGLEGAL ASSISTANCE
All requests for assistance arecommunicated directly to the Central
Authority (Federal Attorney General and
Minister of Justice) through the Ministryof Foreign Affairs, where they are reviewed
according to the policy guidelines above. If
considered to be within the guidelines, therequest is referred to the Inspector Generalof Police (Head Police Officer) for action.
Assistance is granted only on the issues
requested that are stated specifically. The
Criminal Investigation Department isusually mandated to ensure assistancealthough other departments may assist.
Where appropriate, court orders will beobtained for arrests, searches and Seizures.
Finally, upon compilation of a case file, thefiling of the case in a criminal court, andthe issuance of warrant(s) (whereapplicable), the case diary is referred to the163

RESOURCE MATERIAL SERIES No. 57
central authority for final adjudication andrequest.
Where Nigeria wishes to request,
appropriate evidence will be gathered andregistered in a court of competentjurisdiction, which will if it sees fit, issue awarrant for the arrest of the subject. The
file and warrant will then be processed to
the Minister of Justice for further vetting,and upon approval a request will duly bemade by the Minister.
IX. THE STRUCTURE OF THE
CENTRAL AUTHORITYThe Central Authority in Nigeria is the
Attorney General and Minister of Justice.
For the purpose of extradition and legal
assistance requests in criminal matters,
the department of International Law,
headed by a director reviews all requests.
In the department there are several
lawyers who specialise in different aspects
of international law, and are assigned‘’tables”, which indicate the area or countryof their specialisation. The requests arereviewed at this level and referred with
report to the Minister for appropriate
action. In practise, the action of theminister is not entirely unilateral as herefers his decision to the Presidency.
X. CONCLUSION
The fight against organized crime should
be a universal one with all hands on deck.
It should be borne in mind that organizedcrime is not always violent, and quite often
is clandestine in character. It is therefore
difficult to analyse its effects and impact
upon society as for instance would be thecase in money laundering.
Violent
manifestations are easier to analyse, andthe chance of the real threat avoiding
attention is substantially reduced. Proactive measures are necessary to containthis situation. As each region and indeed
country probably has its unique164

characteristics, approaches may differ but
the intent should remain the same. Whatis needed is a holistic approach to the
problem, which should include theelimination of contributing factors, inaddition to dealing with organized crimein a preventive and suppressive manner.
In this regard therefore, the following
suggestions are postulated:i.

Strengthening and transforming
the capacity of the criminal justicesystem to deal with organized crimein terms of making it a more
efficient and effective process;ii. Initiating measures aimed atchanging public values andattitudes towards crime, andinvolving communities in crime
prevention;iii. I m p r o v i n g c o n t r o l a n dmanagement of international
borders to prevent trade in illegal
commodities etc..;
iv. Creating and training specialised
units and border police to handle
organized crime;v.
Legislating against organizedcrime and its proceeds moreaggressively;
vi. I n c l u d i n g o r g a n i z e d c r i m eprevention methods in the
curriculum of Detective Training
Academies;
vii. Encouraging various governmentIntelligence Units to focus onorganized crime as it affects the
security of the state;viii. Increasing co-operation between
security agencies and NonGovernmental Organizations andthe business community;
ix. Strengthening the organizational,
human and financial resources oflaw enforcement departments to
respond to organized crime;
x. Reducing the bottlenecks ininternational co-operation;

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
xi.

Entrenching a universal Code of
Ethics/Conduct for law enforcement
agents and civil servants.

The fight against trans-nationalorganized crime is bound to be a difficult
one but not an impossible one. Relianceshould be on cooperation between security
agencies within a country and between
countries. Only when hands are joined incommon intent, mutual determination anddesire will the menace of trans-national
crime be defeated.

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INTERNATIONAL COOPERATION TO COMBATTRANSNATIONAL ORGANIZED CRIME - WITH SPECIAL
EMPHASIS ON MUTUAL LEGAL ASSISTANCE AND
EXTRADITION
Ahmad Farooq*
I. TRANSNATIONAL ORGANIZEDCRIME
Presently there are varioustransnational crimes which are beingcommitted by the people of the world
generally and particularly under the
influence of criminal organizations. Drugtrafficking, money laundering, trafficking
in women and children, illicit
manufacturing of and trafficking in firearms, acts of corruption, use of violence andextortion and illegal trafficking andtransportation of migrants are the maintransnational crimes with which thecountries of the world are confronted.
There is a rapid growth and geographicalextension of organized crime in its various
forms which has become a threat to thesecurity of the international society,stability of sovereign states impairing thequality of life in addition to undermining
the human rights and fundamental social
values.
Recognizing the growing threat oforganized crime with its destabilizing andcorrupting influence on fundamental social,economic and political institutions which
demands increased and more effective
international cooperation, the United
Nations General Assembly passed a
Resolution No.49/159 on 23 December,
1994. The said Resolution emphasized theneed for improved international
cooperation at all levels for more effective
mutual assistance between the states in* Law & Parliamentary Affairs Department,
Government of Punjab, Lahore, Pakistan

166

their fight against organized transnational
crime. The said Resolution urged states toimplement the Political Declaration and
the Global Action Plan against organizedtransnational crime adopted at Naples.
II. EXTRADITION
The modern word extradition is perhaps
derived from the practice which was called“extra-tradition” because it was against thetraditional hospitality offered to an alien
by a state who had allegedly committed an
offence and sought refuge or asylum to savehimself from prosecution or punishment.
The term extradition has its origin in the
Latin word “extradere” which means
forceful return of a person to his sovereign.
Mr. Cherif Bassioune defined extradition
as a system consisting of several processes
whereby one sovereign surrenders toanother sovereign a person sought as anaccused criminal or fugitive offender.
Similarly, Dr. S. Bedi interpreted
extradition as an act of international legal
help and cooperation for the purpose of
suppressing criminal activities consistingof handing over an individual, accused orconvicted of a criminal offence by one state
to another, which being competent, intends
to prosecute or punish him in accordancewith its laws.
III. HISTORICAL BACKGROUND
The origin of international cooperation
for the suppression of crimes go back to thevery beginning of formal diplomacy. The
surrender on demand of an accused orconvict by a state to which he had fled for114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
refuge in order to defeat prosecution orpunishment by the state within whose
jurisdiction the alleged crime wascommitted, is not a new phenomena ininternational relations. The practiceoriginated in early non-western
civilizations such as Egypt, China, theChaldean and Assyro-Babylonian. In theearly days of practice, the delivery of arequested person to the requestingsovereign was undertaken in solemn
formulas and was performed with pomp.
Delivery of individuals to the requestingsovereign was usually based on pacts ortreaties but it also occurred on the basis ofreciprocity and comity (as a matter ofcourtesy and goodwill between sovereigns).
In fact, the whole history of extradition has
been a reflection of the political relations
between the states in question.
The first recorded extradition treaty inthe world dates back to 1280 BC. In thesecond oldest document in diplomatic
history, Ramases-II, Pharaoh of Egypt
signed a peace treaty with the Hittites after
he defeated their attempt to invade Egypt.
This document was written in
Hieroglyphics and carved on the Temple ofAmmon at Karnak and is also preservedon clay tablet, in Akhodroin in the Hittite
archives of Boghazkoi. The peace treaty
provided expressly for the return of persons
sought by each sovereign who had taken
refuge on the others’ territory. Since then,however, only the practice of Greece andRome in extradition arrangements foundits way into European texts of internationallaw.
In fact, from antiquity until the late 18th
century the persons sought by anotherstate were generally political or religious
opponents of the ruling families and they
were not necessarily fugitives from justicecharged with common crimes. Thus thestronger relationship between thesovereigns, the more interest and concern

they had for each others welfare and themore intend they would be of surrendering
those political offenders who had createdthe greatest dangers to their respective
welfare. The common criminals were theleast sought-after species of offenders since
their harmful conduct affected only otherindividuals and not the sovereign or publicorder.
The history of extradition can be divided
into four periods:
Ancient times to the 17th century period revealing an almost
exclusive concern for political andreligious offenders;ii) 18th century and first half of the 19th
century - a period of treaty making
which chiefly concerned military
offenders characterizing thecondition of Europe during that
period;iii) 1833 to 1948 - A period of collective
concern for suppressing common
criminality; andiv) post 1948 development whichushered in a greater concern forprotecting human rights of persons
and revealed an awareness of theneed to have international due
processes of law to regulateinternational relations. The
historical evolution of the practiceof extradition expressly
demonstrates that extradition inearlier times was used forpreservation of political andreligious interest of the states but
gradually it evolved into aninternational cooperation for thepreservation of the world’s social
interests and suppression of crimes.
This common interest of states, inthe suppression and prevention ofcrime, coupled with the increasing
recognition of basic principles
which gradually softened thei)167

RESOURCE MATERIAL SERIES No. 57
exaggerated feeling of nationalsovereignty unfettered by law andthe emergence of humanitarian
international law giving full
protection to individual rights andinterests, has paved the way for atrue international law on
extradition.

satisfied and a secondary obligation toprosecute under national laws, if
extradition cannot be granted. If the duty
to extradite or prosecute is co-existentrather than alternative or disjunctive, thenthe requested state can choose between
extradition and prosecution at its
discretion.

IV. THE DUTY TO EXTRADITE

V. RECIPROCITY

Hugo Grotios asserted that the state ofrefuge was obligated either to return theaccused to the requesting state or punish
him under its own laws. Similarly, De
Vattel argued that international law
imposed a definite legal duty on the state
to extradite persons accused of serious
crimes. Puffendorf represented a contrary
view and argued that the duty to extradite
was only an imperfect obligation which
required an explicit agreement in order tobecome fully binding under internationallaw and thus to secure the reciprocal rights
and duties of the contracting states.
Similarly, Billot took the position that there
was no right to extradition save by contract
or agreement between states. The duty to
extradite only by virtue of a treaty, whether
it be bilateral or multilateral has become
the prevalent practice amongst states,
though reciprocity and comity still exists
as a legal basis relied upon by a number ofstates, usually through the support ofnational legislation.

Reciprocity is one of the legal basis for
extradition in the absence of a treaty which
is a part of international principles offriendly cooperation amongst nations.
Reciprocity, as a substantive requirementof extradition (whether based on a treaty
or not) arises with respect to various
specific aspects of the process. The
essential question is whether it requiresthat the process of both the requesting andthe requested state be alike or whether
respective states will reciprocally recognize
their respective processes. Reciprocity toa large extent means parallelism or
symmetry between the two processes of therequested and the requesting state.
However, the requested state may consider
that the certain aspect of the requestingstates criminal process is so alien to its
system as to lack any basis of reciprocity.

Most of the conventions on international
criminal law reflect the existence of thegeneral principle either to extradite orpunish. The signatory states to theseconventions have incorporated thisobligation into their domestic laws.
However, it is unclear whether the duty toprosecute or extradite is disjunctive or coexistent. If the duty to extradite orprosecute is disjunctive or an alternative
one, then there is a primary obligation to
extradite, if relevant conditions are

168

VI. DOUBLE CRIMINALITY
Double criminality refers to thecharacterization of the relator’s criminal
conduct in so far as it constitutes an offence
under the laws of the two respective states.
Hence, the general rule is that the offence
in respect of which extradition is requested
must be an extraditable offence not only
under the law of the requesting state but
also under the law of the requested state.
Hence, no state is under any legal
obligation to deliver up a fugitive offender
to a foreign state on its demand if theperson so demanded is charged with an
offence, which is a crime under the law ofthe demanding state only but not

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
punishable under the legal system of thestate of refuge. The principle of double
criminality can also be termed as theidentity rule. The role of double criminality
gives rise to sometimes difficult promises
mainly for the reason, firstly, because ofvariation of laws and institutions in the twocountries and secondly because the act
charged does not amount to acorresponding crime.
There are three approaches to determine
whether the offence charged even thoughcriminal in both states falls within themeaning of double criminality:i)

The substantive requirements to
extradition are that a person accused of or
found guilty of an offence in the requestingstate be surrendered to that state, provided
the following criteria are met:i)

If a treaty exists, the offence mustbe listed or designated.
ii) If no treaty exists, the respective
states will reciprocate for the same
type of offence.
iii) If no treaty or reciprocity exists, but
the request is based on comity, therequested state will rely on its
customary practice.
iv) Furthermore, in all three instances,
the offence charged must also
constitute the offence in therequested state i.e. double
criminality.

Whether the act is chargeable inboth states as a criminal offence
regardless of its prosecutability.
ii) Whether the act is chargeable andalso prosecutable in both states andiii) Whether the act is chargeable,
prosecutable, and could also resultin the conviction in both states.

A corollary to the requirements ofextraditable offence and double criminality
is the doctrine of speciality.

Hence, there is a nexus between double
criminality and extraditable offences.

VIII. THE DOCTRINE OF
SPECIALTY

VII. EXTRADITABLE OFFENCES
Extraditable offences are offences thatare punishable under the laws of bothparties and either enumerated among theextraditable offences or found according to
the formula for ascertaining extraditability
in the applicable treaty. In the absence ofa treaty, if extradition is based onreciprocity, the offence must be mutually
recognized as extraditable. Where
extradition is based on comity, it will
depend exclusively on applicable nationallaw. In addition to designating extraditableoffences, the criminality of the relator’s
alleged conduct must satisfy therequirement of double criminality, i.e. theoffence charged must constitute a crime in
the two legal systems.

The doctrine of specialty embodies thetheory in international law that compels
the requesting state to prosecute theextradited individual upon only those
offences for which the requested country
granted extradition. This doctrine ispremised on the assumption that whenevera state uses its formal processes tosurrender a person to another state for a
specific charge, the requesting state shallcarry out its intended purpose ofprosecuting or punishing the offender only
for the offence for which the requested state
conceded extradition. The doctrine of
specialty developed to protect the requested
country from abuse of its discretionary actof extradition. The violation of specialty
occurs when after extradition, therequesting nation charges and prosecutes
or seeks to prosecute the relator for a crime169

RESOURCE MATERIAL SERIES No. 57
not agreed to by the requested nation in
the extradition proceedings. Implicitly, this
doctrine provides the relator withassurances against unexpected
prosecution.

through international cooperation.
However, according to Section 5 (2) of theExtradition Act, 1972 of Pakistan, no
fugitive offender shall be surrendered:a)

IX. U.N.O. RESOLUTIONSThe United Nations adopted the Model
Treaty on Extradition (General Assembly
Resolution No.45/116 of 14 December,1990) and the Model Treaty on Mutual
Assistance in Criminal Matters (General
Assembly Resolution No.45/117 of 14
December, 1990) which serves as animportant basis for the national legislationof UN principal countries in theirrespective fields. No doubt the
aforementioned Model Treaties are quite
exhaustive but still difficulties are being
faced by the various countries due to lackof international cooperation and refusal of
extradition on various grounds. However,
it is not conducive to the maintenance ofinternational economic, political and social
order that wrong doers escape from justiceas a result of non-cooperation amongst thestates and lack of mutual legal assistanceand extradition. The principle of aut dedere
aut judicare (extradite or punish) has tobe employed wherever necessary andappropriate.

b)

c)

d)

X. OBJECTIVES OF SEMINAR
The main object of this seminar is to
explore the ways and means ofstrengthening and improving international
cooperation to combat transnational crime,
particularly through effective
implementation of the mechanism of
mutual legal assistance and extradition.
XI. EXTRADITION LAW OFPAKISTANIn Pakistan, we have the Extradition
Act, 1972 which is quite helpful forsuppressing transnational organized crime

170

e)

if the offence in respect of which hissurrender is sought is of a politicalcharacter or if it is shown to thesatisfaction of the Federal
Government or of the Magistrate or
Court before whom he may be
produced that the requisition for his
surrender has, in fact, been madewith a view to his being tried or
punished for an offence of a politicalcharacter;if the offence in respect of which hissurrender is sought is notpunishable with death or withimprisonment for life or a term
which is not less than twelve
months;if the prosecution for the offence inrespect of which the surrender issought is, according to the law of
the State asking for the surrenderbarred by time;
if there is no provision in the lawof, or in the extradition treaty with,
the State asking for the surrenderthat the fugitive offender shall not,until he has been restored or has
had an opportunity of returning toPakistan, be detained or tried inthat State for any offence
committed prior to his surrender,other than the extradition offence
proved by the facts on which thesurrender is based;
if it appears to the Federal
Government that he is accused or
alleged to have been convicted ofsuch on offence that if he werecharged with that offence inPakistan he would be entitled to bedischarged under any law relating
to a previous acquittal orconviction.

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERSf)

If he has been accused of someoffence in Pakistan, not being theoffence for which his surrender issought, or is undergoing sentence
under any conviction in Pakistan,
until after he has been discharged,
whether by acquittal or on the
expiration of his sentence orotherwise.

Sections 6 & 7 of the Extradition Act,
1972 deals with the procedure throughwhich a foreign state can make arequisition to the Federal Government ofPakistan for the surrender of the fugitive
offender and the conduct of a magisterial
inquiry by the Federal Government ofPakistan. Pakistan has liberal provisions
for receiving the evidence against the
fugitive offender because it admits
authenticated official certificates of facts
and judicial documents stating facts
against the fugitive offender as evidence.
Similarly, in magisterial inquiry inPakistan, the warrants, depositions orstatements on oath which purport to havebeen issued, received or taken by any courtof justice outside Pakistan or copies thereofor certificates of or judicial documents
stating the fact of conviction before any
such court are also admitted.
The magisterial inquiry in Pakistan isconducted only to find out a prima faciecase and the same cannot be regarded as aregular trial by a court of law. The evidence
before a magistrate would be relevant indetermining the extraditability of an
offender. The rule of specialty is also
contained in Section 16 and Section 5(2)(d)of Pakistan’s Extradition Act, 1972.
Furthermore, the extradition law inPakistan also provides for the surrenderof everything found in the possession of afugitive offender at the time of his arrest
subject to the right of any third party.

In Pakistan, the following are
extradition offences:
1. Culpable homicide
2. Maliciously or wilfully wounding
causing grievous bodily harm.
3. Rape
4. Procuring or trafficking in womenor young persons for immoral
purposes.
5. Kidnapping, abduction or false
imprisonment or dealing in slaves,
6. Bribery.
7. Perjury or subordination or
perjury or conspiring to defeat thecourse of justice.
8. Arson
9. An offence concerning counterfeit
currency.
10.An offence against the law
relating to forgery.
11.S t e a l i n g , e m b e z z l e m e n t ,fraudulent conversion, fraudulent
false accounting, obtaining
property or credit by false
presences receiving stolen
property or any other offence inrespect of property involving
fraud.
12.Burglary, house - breaking or any
similar offence.
13.Robbery
14.Blackmail or extortion by meansof threats or by abuse of authority
15.An offence against bankruptcy
law or company law.
16.Malicious or wilful / damage toproperty.
17.Acts done with the intention ofendangering vehicles, vessels or
aircraft.
18.An offence against the law
relating to dangerous drugs or
narcotics.
19.Piracy
20.Revolt against the authority of themaster of a ship or the commanderof an aircraft.

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RESOURCE MATERIAL SERIES No. 57
21.Contravention of import or export
prohibitions relating to precious
stones, gold and other precious
metals.
22.A i d i n g a n d a b e t t i n g , o r
counselling or procuring thecommission of, or being anaccessory before or after the fact
to, or attempting or conspiring tocommit, any of the aforesaid
offences.
Interestingly, the concept of extradition
law was specifically upheld in Islamic
history in the shape of the Al-Huddebiyah
Treaty.
A new law has been promulgated inPakistan known as the National
Accountability Bureau Ordinance, 1999
which envisages international cooperation/
requests for mutual legal assistance.
Moreover, Pakistan has very stringent
legal provisions for punishing offenders
accused of drug trafficking. In thisconnection, Pakistan has a law embodied
in the Act of the Parliament generally
known as Control of Narcotic Substances
Act, 1997 which contains a very broad/wide
definition of narcotic drugs and describe
maximum sentences. Even this Act of 1997
contains a full-fledged chapter oninternational cooperation. The Pakistan
Government is legally bound to rendermutual legal assistance to a foreign state
to collect evidence, conduct investigationand even to freeze, confiscate and forfeit
assets of an offender in Pakistan subject
to legal process in Pakistan. Pakistan has
also a law for sharing forfeited property
with a foreign state on reciprocal basis bymutual treaties.

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114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
XII. FIGHT AGAINST TRANSNATIONAL ORGANIZED CRIME THROUGHEFFECTIVE IMPLEMENTATION OF THE MECHANISM OF MUTUALLEAGAL ASSISTANCE AND EXTRADITION
With the advent of modern technology
in communication the world has grown tobe pretty small. With the world growing
yet smaller, crimes committed within one
country are no longer confined to within
its own borders but it so often happens thatthe looted and plundered money islaundered and filtered through various
channels involving various countries.
There are numerous instances whereleaders of the third world have madewrongful and illegal gains in theirrespective countries and then stashed away
their ill-gotten wealth either in the Swiss
Banks or in the Carribean Islands, whichhave been safe havens for them. However,
the world has not slept over their wrong
doings. There has been a continuous effort
to curb such activities and even countries
which were safe havens till recent past,
have legislated new laws aimed at
mutually co-operating with each other tomake the world a better and safer place.
The hand of mutual assistance was
extended from one country to anotherprimarily based on reciprocal promises.
Laws on mutual assistance developed oflate in the early 80s and various countries
have enacted the same. The safe havensof Switzerland and to some extent the
Carribean Islands are no longer safe withthe advent of these laws. The Swiss Banks
still have numbered accounts, but it has
become mandatory on the operator of theaccount to disclose the name of thebeneficiary in the Account Opening Form.
This has been done in order to eradicate
corruption and crime in one form or another from the entire world. Swiss Banksno longer encourage or launder dirty moneyfor others.

In my paper I try to highlight the role ofPakistan where laws of mutual assistancewere sought and its laws invoked in thetrial of its former Prime Minister. Pakistan
invoked the jurisdiction of the Swiss Police
in Berne under the Swiss Federal Act on
International Mutual Assistance in
Criminal Matters, This was an Act which
was enacted on 20 March, 1981 andamended on the 4 October, 1996 by the
Swiss Confederation.
It was under this Act that certain
documents along with a complaint were
presented by the Government of Pakistan
to the Berne Police in Switzerland seeking
its assistance in investigating some of thecrimes committed by the Pakistan’s former
Prime Minister, Ms. Benazir Bhutto andher husband Asif Ali Zardari.
On the complaint being made, the Burne
Police started investigating into the matterand thereafter referred the matter to an
investigating Magistrate in Geneva. The
Investigating Magistrate in turnsummoned documents not only from the
Swiss Banks but also took into possession
documents from the companies that wereinvolved in the commission of the offence.
He also obtained documents from Zardari’s
agent, Jens Schlegelmilch and from
Cotecna & SGS. Once these documents had
been summoned by the Investigating
Magistrate in Geneva he, on examination,found that not only some crime had beencommitted by Ms. Bhutto and Asif Ali
Zardari in Pakistan on which mutual
assistance had been sought, but these
persons had conspired with Jens
Schlegelmilch and the officials of Cotecna
and SGS, who were Swiss nationals tocommit acts which were offences under
Swiss law as well. Apparently, money

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RESOURCE MATERIAL SERIES No. 57
laundering had taken place in Geneva. He,
therefore, indicted all these persons. It wasat this stage that the Judge in Geneva
invoked the reciprocal promise of Pakistan,under the mutual assistance programme,
to provide assistance in effecting service of
the indictment orders on Mrs. Bhutto andZardari in Paksitan.
Letters Rogatory were received from theInvestigating Magistrate in Geneva
through diplomatic channels in Pakistan
for onward service on Mrs. Bhutto andZardari. These Letters Rogatory also
contained copies of original documents that
had been collected by the Judge in
Switzerland. It was after service had beeneffected in terms of the Letter Rogatorythat these documents were used in the trialof Mrs. Bhutto and Zardari. The State ofPakistan obtained certified copies of these
documents which accompanied the Letters
Rogatory duly attested in the manner asprescribed under the law of evidence inPakistan, and they were proved in court.
During the course of the hearing a
Commission was sent from the Lahore
High Court, for authentication of certain
documents from the Geneva Court. The
Swiss authorities facilitated the task andthe Commission was able to discharge its
functions. These documents primarily
brought home the guilt of the accused
which resulted in their conviction, and thefamous judgment of the Lahore High Court
was delivered on the 14 April, 1999.
This is the first case in the history of theworld where the former Prime Minister ofa country has been convicted through thedue process of law on charges of corruption
and corrupt practices and Pakistan is thefirst country to have invoked the mutual
assistance programme to achieve thedesired results. The system worked.
Similar proceedings have also been
initiated by Pakistan in London where174

mutual assistance has been sought on the
charges of drug trafficking which have beenbrought against Mr. Zardari in Pakistan.
The United Kingdom has a mutual
assistance programme but it is restricted
only to drug related offences. The mutual
assistance programmes should be extended
to other offences as well, like Switzerland
which not only extends to drug related
practices but also to money laundering as
well. It would be very helpful for countries
to gather evidence from other countries
proving the commission of offences. In the
English Courts evidence has so far beencollected which definitely goes to show thewealth that had been amassed by Zardari
but in the event of Pakistan not being able
to prove its case against Mr. Zardari on
drug trafficking charges, none of theevidence so collected would either betransmitted to Pakistan nor could be used.
Mutual assistance programmes should be
extended so as to cover all criminal acts
and not be restricted to only one or two
special instances.
Pakistan has also made another great
headway when a Judicial Commission
investigating allegations of fixing cricket
matches proceeded to Australia and set up
a Pakistani court in Melbourne. This could
only be done under mutual assistanceextended to each other by the twocountries. A Victorian Supreme Court
offered its court premises where the
Judicial Commission assembled. The lawsof Pakistan were made applicable. The
process of service was provided by theAustralians and it has been so reported in
the Age of Melbourne of 9 January, 1999:“A Mont Albert tram was rattling
and a seagull circled above as thejudge made his entrance. The High
Court of Lahore was in such session
as it can never have been before.
On one wall was the Victorian coatof arms. On the other hung a

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
portrait of Muhammad Ali Jinnah,
the founder of Pakistan, Judge
Abdul Salam Khawar invoked thename of “Almighty Allah” as hebegan. On his desk sat a small
Pakistan flag. Thus a few square
metres of Australia became, for a
moment, Pakistan.”
These proceedings are an eye opener forthe rest of the world. It clearly
demonstrates that in the near future there
is a possibility of courts of one country
travelling to another using theparaphrenalia of the host country,
including the law enforcing agencies in thehost country for effecting service andsummoning witnesses and documents,
proving these documents in accordancewith the law of ones own land by physicallydoing it in the host country and once theevidence is so collected and proven, to use
it in your own country against the person
charged with the offence. This could open
new frontiers in the trial of cases. Videotechnology is already a new frontier but isstill at its infancy stage. Statements of
witnesses are already being recorded via
video link and cross-examination is alsodone in the same manner but has limited
practice at the moment. In the near future,
I am sure this technology will be ineveryday use.
The nations of the world must unite to
make a solid commitment to enact the laws
on mutual assistance. There should be no
immunity to any one in respect of thecrimes committed in any part of the world.
In the recent past, in Rome, 120 states
adopted a statute for a PermanentInternational Criminal Court withjurisdiction over war crimes and crimes
against humanity - including thosecommitted in peace times. The role of theInternational Court of Justice and Interpol(International Criminal Police
Organisation) should be enhanced and thenations of the world should submit to its
jurisdiction through treaties or under theumbrella of the United Nations.
UNO should also strive to prepare acommon list of extraditable offences whichshould be accepted by all the nations of theworld. The mandatory grounds for refusal
to extradite an offender should be reduced
to the minimum. The new investigating
methods and technologies should be madeadmissible in evidence against the fugitive
offenders in the requested states. New
laws should be enacted for sharing theassets of an offender by the requesting andthe requested states.
Before concluding this paper, I would
like to propose that a International
Authority for Extradition must be
established under the control of U.N.O. andall the states should forward their requests
for extradition of their fugitive offenders
along with the necessary evidence to thesaid court which would decide the questionof extradition after hearing the fugitive as
well as representatives of the requested
states. The creation of an independent andimpartial International Authority for
deciding extradition cases is essential
because no state is under any legal
obligation to surrender a fugitive offenderin the absence of a specific treaty. There isno unanimity amongst the states on the
point of extradition or legal assistance on
the criminal 1aws of various countries
which are sharply divided on many crimes
as well as on the question of guilt of the
fugitive. Moreover, there is a historicalbasis for non-extradition of nationals as it
gives a sense of security and preference infavour of their own national jurisdiction.
Hence, in order to achieve international cooperation for the suppression oftransnational organized crime, statesshould accept the authority of aninternational body on extradition. This
body/authority should also be empowered

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RESOURCE MATERIAL SERIES No. 57
to grant compensation/import fines on astate in case a request for extradition of afugitive offender proves to be false, illegal
and based on political considerations alone.
In the end, Pakistan for its part would
be willing to cooperate with any
international move which advances thecause of suppressing transnationalorganized crime.

176

114TH INTERNATIONAL TRAINING COURSEREPORTSTHE
SEMINARREPORTSOF
OF THESEMINAR

TOPIC 1
SPECIFIC PROBLEMS AND SOLUTIONS THAT ARISE IN
CASES INVOLVING INTERNATIONAL MUTUAL LEGALASSISTANCE OR EXTRADITION
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Advisors

Mr. Sh. Ahmad Farooq
Mr. Chandra Jayathilake
Mr. Makoto Tamura
Mr. Jumpol Pinyosinwat
Mr. Jese Marovia Vukinagauna
Mr. Masafumi Nishiguchi
Deputy Dire-ctor Masahiro Tauchi
Professor Akihiro Nosaka
Professor Shinya Watanabe

I. INTRODUCTION
The topic assigned to our group for
discussion and preparation of a report was;
“specific problems and solutions that arise
in cases involving international mutual
legal assistance or extradition with respectt o : a s s u r a n c e o f r e c i p r o c i t y, d u a lcriminality, and the scope of offences which
can be the basis for mutual legal assistance,or the scope of extraditable offences”.
In general, both “mutual legal
assistance” and “extradition” areessentially a process of intergovernmental
legal cooperation in the investigation,prosecution and punishment of criminal
offenders. Accordingly, the basic conceptsof mutual legal assistance and extradition
are somewhat similar. Nevertheless, themain purpose of mutual legal assistance isdifferent from extradition. Briefly, mutual
legal assistance is the cooperation or
assistance regarding investigation,prosecution and judicial proceedings inrelation to crimes; for example, taking
evidence or statements from persons,executing searches and seizures, providing
information, evidentiary items, while
extradition is a formal process by which a(Pakistan)(Sri Lanka)(Japan)(Thailand)(Fiji)(Japan)(UNAFEI)(UNAFEI)(UNAFEI)

person is surrendered by one state toanother. As Mr. Hans G. Nilsson (UNAFEI
Visiting Expert) observed, the primarydifference between mutual legal assistanceand extradition is extradition involves the“body” of an offender and, consequently,
extradition needs more serious
consideration and urgent action since thefundamental human rights should be takencare of. As a result, there are somedifferences at the practical level between
these two processes.
Nonetheless, in general, we could saythat the objective of assurance ofreciprocity, dual criminality and the scopeof offences are not fundamentally different
in these two forms of cooperation, and mostcountries use the same concepts in theirdomestic legislation for both purposes, forexample, the rule of dual criminality inJapan (Law for International Assistance inInvestigation, Article 2(2) and Law ofExtradition, Article 2(5)), in Thailand (The
Mutual Assistance in Criminal Matters
Act, Section 9(2) and The Extradition Act,
Section 12(2)), and in the Republic of Korea(Act on International Judicial Mutual
Assistance in Criminal Matters, Article 6(4)and The Extradition Act, Article 6)

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RESOURCE MATERIAL SERIES No. 57
In addition, the group conducted acomparative survey on extradition andmutual legal assistance in criminal
matters, based on national legal systems
represented among the participants of theseminar. The results are included in the
Appendix attached to this report.
II. ASSURANCE OF RECIPROCITY
A. General Concept
Reciprocity is one of the bases for mutual
legal assistance and extradition treaties,
whether it is a multilateral or bilateralagreement. Generally, “assurance ofreciprocity” means the assurance that arequesting state will comply with the same
type of cooperation or request from arequested state in the future.
Moreover, in practical terms, theessential question is whether this concept
requires that the process of both therequesting and the requested states bealike or whether the respective states will
reciprocally recognize their respective
processes. This problem has implicationsin the area of the dual criminality
requirement, extraditable offenses,
criminal processes and others. To a large
extent, reciprocity in this sense means
parallelism or symmetry between the twoprocesses in the requested and requestingstates.
For example, some states rely on thenationality doctrine, while others do not.
If the requested state can surrender its
nationals, it implies in most cases that thatstate cannot prosecute its national for
offences committed abroad. If such a state
requires an extradition request fromanother state which prohibits surrender of
its nationals, that state may, relying on
reciprocity, deny the request. The
requested state that can surrender its
nationals may rely on reciprocity to deny178

the request on the understanding thatsince it could not prosecute on such ajurisdictional theory (nationality principle),
it cannot grant extradition for prosecution
in the requesting state which will be basedon the said theory.1
B. Issues Arising from the General
Discussion and Individual
Presentation Papers.
Admittedly, the principle of reciprocity
creates some degree of uncertainty,
especially in practice. Owing to thisuncertainty, a better solution would be to
ground the cooperation in a multilateralagreement, such as the United Nations
Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances of 1988 or Draft United Nations
Convention against Transnational
Organized Crime.
Reciprocity is explicit in a treaty where
each party has agreed either to surrenderfugitives to the other or to render requested
assistance on the understanding that its
requests will also be honored in the future.
In ad hoc arrangements, designed to meetthe situation where the fugitive is foundin a country with which the requestingstate does not have relationships based ona general extradition treaty, a special
agreement may be reached whereby therequested state will extract anunderstanding that in similar
circumstances its request for extradition,or legal assistance, for that matter, will beconsidered.
Although there are doubts as to whether
the rule of reciprocity should constitute alegal requirement for extradition,
reciprocity continues to play a significant
1

M.Cherif Bassiouni, International Extradition:
United States Law and Practice, 3rd. Edition, 384385 (1996).

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
role in the practice of extradition. It renders
extradition possible without excessive
formalities in the absence of a treaty. It may
also be relied upon to complement a treaty
where the offence for which extradition isrequested falls outside the scope of thetreaty, but is nevertheless permitted by thedomestic law of the requested state.

In addition to 31 mutual legal
assistance treaties (MLATs) in force
and 23 MLATs signed in recent
years, 2 the United States hasdeveloped a modern mechanism forinternational law enforcement
cooperation, a type of mutual legal
assistance. Due to the fact that mostinternational cooperation isconducted through direct contact
between police in the countries
involved, the “police to police
assistance”, or “cop to cop”
cooperation has been used on thebasis of good will, mutual respect, andshared interest in combating crime.3
A good example is the investigationof the Kenyan and Tanzanianembassy bombings in 1998 whenhundreds of FBI agents immediately
flew to Africa to begin intensive
investigation, alongside the Kenyan
and Tanzanian counterparts.4

The difference of assurance of reciprocity
between mutual legal assistance andextradition depends on the domestic
legislature of each state. Consequently,
some distinctions have to be drawn. The
primary difference between mutual legal
assistance and extradition is thatextradition involves the “body” andconsequently, extradition relates to theissue of human rights. Generally, theassurance of reciprocity in mutual legal
assistance and extradition procedures
depends on many factors, for example; thedomestic legislature of both countries, dual
criminality, previous practices, policies andpolitics. It seems that this requirement ismore strictly observed in extradition, while
the assurance of reciprocity in mutual legal
assistance seems much more flexible.
However, no commonly accepted standardof this assurance has developed in thisrespect. Sufficiency of assurance is
examined and evaluated by the requested
state according to its own standards on acase-by-case basis. With regard to thepractice, the concept of “trust” or “mutual
trust” may play the most important role
for the cooperation of mutual legal
assistance. There are some examples fromstates’ practice that should be mentioned:
1. The United States may grant mutual
legal assistance and cooperation to arequesting state, even though there
is no treaty with this country. The
requirement of assurance ofreciprocity is also flexible, and can bebased on the expectation of futurecooperation by the requesting state.

2. T h e P h i l i p p i n e s , w i t h o u t a n y
implementing laws for mutual legal
assistance, has enforced MLAT tocooperate with many requestingstates. For example, in 1998, Japan
requested the Philippines forassistance in a criminal case relating
to “Abandonment of Corpse andViolation of the Firearms and Swords
Control Law” by confiscating the
reward money for this criminal act
that was transferred into a bank in
the Philippines. In the end, thePhilippines’ prosecutor contacted thepossessor of that money and turned
2John E. Harris, UNAFEI Visiting Expert,“International Cooperation in Fighting
Transnational Organized Crime: Special Emphasis
on Mutual Legal Assistance and Extradition,”
Paper presented to the 114th International Senior
Seminar (Jan.17-Feb.18, 2000), 8.
3 Id., at 6.
4 Id., at 5.

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RESOURCE MATERIAL SERIES No. 57
over the money to the Japanese
Embassy.5
3. T h e R e p u b l i c o f U z b e k i s t a n ,meanwhile, applies the provisions of
the code of criminal procedure forextradition and mutual legal
assistance, without any specificdomestic laws. The only multilateralagreement is the 1993 Minsk
Convention on the Legal Assistanceand Legal Regulations in Civil,
Family and Criminal Cases, dealing
with the issues of extradition andmutual legal assistance.6
Nonetheless, Uzbekistan has
cooperated with requesting countries
in matters of extradition and mutual
legal assistance, based on theprinciple of reciprocity.
In addition, the Appendix shows thatsome participants’ countries, as the treaty
prerequisite countries, grant extradition
and/or mutual legal assistance on the basisof reciprocity.
C. Recommendations
1. A clear disadvantage of reciprocity is
the geographical limitation ofinternational cooperation. Moreover,reciprocity presumes a certain degreeof similarity between the cooperatingstates. Therefore, a better solution
seems to be a multilateral agreement.
5

Severino H. Gana, Jr., UNAFEI Visiting Expert,“Extradition and Legal Assistance: The Philippine
Experience,” Paper presented to the 114th
International Senior Seminar (Jan.17-Feb.18,
2000), 15-16.
6 Afzal A. Nurmatov, “Main Theme: International
Cooperation to Combat Transnational Organized
Crime — with Special Emphasis on Mutual Legal
Assistance and Extradition,” Paper presented to the114th International Senior Seminar (Jan.17Feb.18, 2000), 16-17.

180

2. Besides a multilateral agreement,
bilateral treaties among states also
should be promoted. In order toachieve smooth, efficient and effective
cooperation, the United Nations
Model Treaty on Mutual Assistancein Criminal Matters and United
Nations Model Treaty on Extradition
should be considered.
Simultaneously, the United Nations
may help the member states tomodernize and harmonize theirdomestic laws by providing necessary
information through sending writtenmaterials and organizing seminars
and conferences.
3. In view of facilitating international
cooperation, the treaty prerequisite
countries may consider amending
their domestic legislation in order toenable mutual legal assistance andextradition with treaty nonprerequisite countries. Moreover, inthe fight against serious crime andtransnational organized crime, it isessential to relax the interpretationof reciprocity to secure efficient andeffective cooperation among states.
III. DUAL CRIMINALITY
A. General Concept“Dual criminality” refers to thecharacterization of the offence, andrequires that the set of facts on which thelegal assistance or extradition request isbased, constitute an offence under the lawsof both states involved. In other words, dual
criminality embodies a reciprocal
characterization of those offenses deemed
extraditable. Dual criminality is intended
to ensure each state that it can rely on
corresponding treatment, and that no stateshall use its processes to surrender aperson for conduct which the requested
country does not characterize as criminal.

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
There are two different concepts of dual
criminality; one is in concreto approach inthe context of application to extradition andthe other is in abstracto approach in thecontext of application to mutual legal
assistance, respectively.
B. Issues Arising from the General
Discussion and Individual
Presentation Paper.
Both the “list of offense system” or“listing system” and “minimum
imprisonment system” require dual
criminality. As mentioned in Mr. Mikinao
Kitada’s paper, the dual criminality
requirement comes from the view that it is
not appropriate to surrender any fugitive
for the offence which is not the crime in
the requested country.7 Also, in the context
of mutual legal assistance, a requested
country may not cooperate with therequesting country if that offence is notpunishable in that country.
In the listing system, a schedule in which
all extraditable offences are listed isusually attached to the treaty. Therefore,
if an extradition request is based upon anyof the listed offences, the request
presumably meets the requirement of dual
criminality. On the other hand, in theminimum imprisonment system, arequested country has to examine whether
the act described in an extradition request
may constitute any crimes under therequested country’s criminal laws.

offence against a law in force in therequested state. Generally, most states
have required in concreto approach.
Particularly, the resolutions adopted by the1969 Tenth International Congress ofPenal Law recommended that therequested state set aside the requirementof dual criminality in concreto, unlessspecial circumstances exist in therequesting state, such as the question of
public order. In those cases, the requested
state would examine in abstracto whether
the conduct of the offender constitutes anoffence under the state’s law, or if it deems
that type of conduct punishable.8
Nonetheless, in a case relating to aconspiracy offence in 1989, Tokyo High
Court adopted a broad interpretation of therequirement of dual criminality. In thiscase, the United States requested Japan
to extradite a person prosecuted forconspiracy to traffic drugs. The issue ofdual criminality arose because Japan’s
criminal law had no offence of conspiracy.
The Tokyo High Court ruled on theadmissibility of extradition of the requested
person on the ground of actual action, while
holding that, “when we apply the Japaneselaws to these facts, it is obvious that Person
A is at least an accessory to the crime ofheroin importation.”9 In other words, thedecision mainly focused on the actual
action behind the crime, and pointed outthat the principle of dual criminality should

7

The differences in legal systems andinterpretations of dual criminality give rise
to many problems. To solve them within
the context of extradition, the United
Nations Model Treaty on Extradition,
Article 2 Paragraph 2 proposes states tolook at the totality of the conduct and to
decide whether any combination of thoseacts and/or omissions would constitute an

Mikinao Kitada, Director of UNAFEI,“International Cooperation to Combat
Transnational Organized Crime, Extradition and
Mutual Legal Assistance,” Paper presented to the114th International Senior Seminar (Jan.17Feb.18, 2000), 5.
8 See supra note 1, 390.
9 Makoto Tamura, “Two precedents regarding
extradition in Japan,” Paper presented to the 114th
International Senior Seminar (Jan.17-Feb.18,
2000), 2-4.

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RESOURCE MATERIAL SERIES No. 57
be based on the behavior of the alleged
offender.
On the other hand, for mutual legal
assistance, the interpretation by related
authorities seems much broader andrelaxed. This may be due to the fact thatthe nature of this assistance is different
from extradition as it may not necessarily
infringe upon a person’s liberty or freedom.
The basic idea is that the essential
constituent elements of the offence should
be comparable under the law of both states.
Nevertheless, when it comes to mutual
legal assistance, the trend and practice ofmany states is to relax this requirement.
Some states are now rendering mutual
legal assistance even without ther e q u i r e m e n t o f d u a l c r i m i n a l i t y. 1 0
Furthermore, this principle has also beenrelaxed in some MLATs, for example;11 theMLAT between the United States andCanada, specifying that assistance shall be
provided without regard to whether the
alleged conduct constitutes an offence inthe requested country or not.12

Group 1. Some of them were of the opinion
that the principle of dual criminality is still
indispensable in the context of mutual legal
assistance and merely a more flexible
interpretation or lower standard test may
be adequate in this area since this lower
standard test could also cover all serious
crimes, while the majority preferred theabolishment of the dual criminality
requirement.
Furthermore, while interpreting thedual criminality principle, a due
consideration should be given to the statuteof limitation and lapse of time. The
principle of dual criminality also relates tothe principle of dual punishability.
Therefore, the issue of lapse of time andstatute of limitation will have to be taken
into account while determining thefulfillment of the condition of dual
criminality for extradition or mutual legal
assistance.

13 “Revised draft United Nations Convention against

The Draft United Nations Convention
against Transnational Organized Crime
indicates that the delegations proposedthat the dual criminality requirement beabolished for mutual legal assistance
except for the application of coercive
measures.13 Article 14, Paragraph 6 is an
outcome of the compromise between the
proponents and opponents of thisrequirement.14 This disparity of views was
also reflected among the members of
10 Group 2, Mutual Assistance in Criminal Matters,

Annual Report for 1996 and Resource Material
Series No. 51, 599 (1997).
11 In addition, the Appendix shows that, among theparticipants’ countries, the Philippines, Pakistan
and Sri Lanka have abolished the dual criminality
requirement for mutual legal assistance.
12 Id.

182

Transnational Organized Crime” has been preparedby the “Ad Hoc Committee on the Elaboration of aConvention against Transnational Organized
Crime,” United Nations, General Assembly, and waspresented to the Fourth Session, Vienna, 6-17
December 1999. See Draft Article 14“...
6. States Parties may not decline to rendermutual legal assistance under this article on the
ground of absence of dual criminality, unless theassistance required involves the application of
coercive measures.
...”
14 Information provided by Professor Michael Plachta,
UNAFEI Visiting Expert at the 114th International
Senior Seminar (Jan. 17 - Feb. 18, 2000). Mr.
Plachta served as the leading expert of the Polish
Government and a member of the official Polishdelegation to the UN Ad Hoc Committee for the
Elaboration of the Convention against
Transnational Organized Crime.

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
Moreover, both the United Nations
Model Treaty on Extradition (Article 3
paragraph (e)) and the European
Convention on Extradition (Article 10)
affirm that extradition shall not be granted
when a person becomes immune fromprosecution for lapse of time. However,domestic law varies in this respect. For
instance, in most common law states, thesystem of lapse of time is not adopted.15 In
Japan, the lapse of time is interrupted assoon as the suspect flees the country. In
Pakistan, once the case is legally
registered, there will be no time limitation
for prosecuting the defendant. The law in
Thailand does not allow for an interruptionof the running statute of limitation.
Another issue emerging from the general
discussion is the following question: thestatute of limitation of which country
should be adopted as controlling the case?
The Model Treaty of Extradition, Article
3(e), requires the law of either Party, 16
while the Convention relating to
extradition between the Member States of
the European Union, Article 8, seems todepend on the law of the requesting state,17
unless the requested state also has
jurisdiction under its own criminal law.
C. Recommendations
1. In order to enhance international
cooperation, in cases of extradition,
it is recommended to interpret the
principle of dual criminality in a
flexible manner. In other words, therelevant authority in the requested
state should be required to look at the

totality of the conduct, focusing on thecriminality of the conduct whatever
its label. The requirement should besatisfied even if the offence iscategorized differently in the twostates or if some components of the
conduct forming the extradition
offence or mutual legal assistance are
not entirely the same.
2. Countries should consider granting
legal assistance without requiringthat the alleged conduct constitute an
offence in the requested country,
unless the assistance requested
involves the application of coercive
measures, for instance search andseizure.
3. To solve practical problems createdby the dual criminality requirement,
the harmonization of domestic
criminal law is recommended. This
could be achieved throughelaborating and ratifying aninternational instrument. An
example can be found in the Draft
United Nations Convention against
Transnational Organized Crime
whose Article 4 criminalises
laundering offences. By ratifying thisConvention, State Parties will adopt
an identical definition of this offence
and its constituent elements.

15 Group 1, Mutual Assistance in Criminal Matters,

Annual Report for 1996 and Resource Material
Series No. 51, 573 (1997).
16 Article 3(e) “If the person whose extradition isrequested has, under the law of either Party, become
immune from prosecution or punishment for any
reason, including lapse of time or amnesty:”

17 Article 8 Paragraph 1 “1. Extradition may not berefused on the ground that the prosecution orpunishment of the person would be statute-barredaccording to the law of the requested Member
State.”

183

RESOURCE MATERIAL SERIES No. 57
IV. THE SCOPE OF OFFENCES
WHICH CAN BE THE BASIS FOR
MUTUAL LEGAL ASSISTANCE, OR
THE SCOPE OF EXTRADITABLE
OFFENCES
A. General Concept
In general, the offence for which
extradition is requested must be either
enumerated among the list of extraditableoffences or established according to theminimum imprisonment rule. In theabsence of a treaty, the extradition may bebased on the principle of reciprocity andthe offence must be mutually recognized
as extraditable. This requirement is inaddition to that of the dual criminality
requirement.
The listing system or enumerative
system, by which the offences are named
and defined, creates undue limitation to thescope of application of extradition, andmakes this system inflexible. On the other
hand, the minimum imprisonment system
or eliminative system, which is indicative
rather than limitative, specifies
extraditable offences which under the lawsof both states are punishable by an agreed
degree of severity, usually a minimum of
imprisonment. 18 This system, althoughmore preferable, also has somedisadvantages.
B. Issues Arising from the General
Discussion and Individual
Presentation Paper19
The United Nations Model treaty on
Extradition has adopted the minimum
imprisonment approach in Article 2paragraph 1, which reads as follows; “forthe purpose of the present Treaty,
extraditable offences that are punishable
under the laws of both Parties by
18 See supra note 1, 396.

imprisonment or other deprivation ofliberty for a maximum period of at least
one/two year(s), or by a more severe
penalty....” However, many countries use
both approaches in their treaty practice.
The listing approach will offer the list of
specific offences and also excludes theunnecessary offences. Therefore, theParties could focus on the specific scope ofoffences as they agree, for example specificoffences of transnational organized crimeor other kinds of serious crimes. This
listing approach also decreases some
practical problems - for example, in somecountries, the penalty for shoplifting may
be imprisonment less than 6 months, while
the maximum penalty for this offence inThailand is a deprivation of liberty for 3
years. So, in this sense, the minimum
imprisonment approach might also causesome problems. The main problem of thelisting approach arises from the fact thatthe list can omit certain offences, and thesubsequent inclusion by supplementarytreaty may prove too cumbersome. With
regard to some offences their definition
may vary, for example, cheat or fraud. This
may give rise to divergent interpretationin different countries. Another problem isthat the list might not cover newly
emerging and future crimes. To lessen the
difficulties mentioned above, a proposed
technique of defining extraditable offencesin treaties presupposes listing nonextraditable offences and designating
extraditable offences by type and category.
On the other hand, the minimum
imprisonment approach will decrease thepotential for a dispute relating to dual
criminality. Also, this approach eliminates
the problem of listing offences. Moreover,it could also cover any new crimes, forexample computer crimes, white-collar
19 The approach of each participant’s country is shownin Appendix A.

184

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
crimes. The biggest disadvantage of thisapproach is the disparity in penalties
among states and legal systems. The
different cultural attitudes may also cause
problems for minor crimes. For example,
even within the European Community,
there are different approaches to certain
offences: “Simple examples are thepermissive attitude towards cannabis use
in the Netherlands, the greater tolerance
to certain forms of pornography inGermany, the very tough stand taken by
Greek courts against hooliganism”. 20
Nonetheless, the minimum imprisonment
approach is considered a modern concept.
This formula has been adopted in the
U n i t e d N a t i o n s M o d e l Tr e a t y o f
Extradition, the European Convention on
Extradition and many other treaties.
Therefore, a consensus on the minimum
imprisonment approach for extraditableoffences is to be recommended. In addition,
the United Nations Model Treaty on
Extradition, Article 2 Paragraph 2, also has
attempted to minimize the problem byproviding some standards to determine theoffence punishable under the laws of both
Parties.

Contracting Parties undertake to afford
each the widest measure of mutual
assistance.
C. Recommendations
1. For the purpose of extradition, theminimum imprisonment systemshould be adopted by all states tomake the scope of extraditableoffences broader and more dynamic.
2. It is recommended that the scope ofoffences for which mutual legal
assistance can be granted be as widea s p o s s i b l e . H o w e v e r, a m o r e
restrictive approach should be
adopted with regard to coercive
measures.

For mutual legal assistance, it isadvisable and recommended that its scope
be expanded as much as possible. 21 Thisidea has been reflected in Article 1 of theUnited Nations Model on mutual
assistance in criminal matters: “TheParties shall, in accordance with thepresent Treaty, afford to each other thewidest possible measures of mutual
assistance in investigations or court
proceedings.” Similarly, the European
Convention on Mutual Assistance in
Criminal Matters, Article 1, states that the
20 Geoff Gilbert, Aspects of Extradition 9 (1991), in

Jumpol Pinyosinwat, “The Extradition Act inThailand and the New Draft Extradition Bill” Paper
presented to the 114th International Senior Seminar(Jan.17-Feb.18, 2000), 13.

21 The Appendix shows that there is no limitation forthe scope of offence under the domestic legislatureof Japan and Korea, in the matter of mutual legal
assistance.

185

186

Scope ofoffence

Double Criminality
Requirement

Assurance ofReciprocity*1─Yes─

M.L.A.

Extradition

M.L.A.
Yes

Yes

Yes

Yes

No

Yes

No

No

Civil

Yes

Yes

Yes

Yes

No

No

No

No

Yes

Yes

No

No

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

No

No

M.L.A.
─

No

Yes

No

Yes

No

Yes

Yes

Yes

Civil

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Civil

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Common Mixed

Minimum Listing Listing*2 Minimum*2 Minimum*2 Minimum Minimum

Listing Minimum Minimum*2 Minimum Minimum

Yes

Yes

Yes

Yes

No

Yes

Yes

Yes

Civil

INDIA INDONESIA JORDAN LITHUANIA MALAYSIA NEPAL

Original Common Common

FIJI

Extradition Minimum Minimum Minimum*2 Minimum Listing

Yes

Extradition

Yes

Extradition──

M.L.A.

M.L.A.

Yes

Extradition

CommonBANGLADESH BRAZIL CHINASURVEY ON MUTUAL ASSISTANCE AND EXTRADITION IN CRIMINAL MATTERS

Domestic Law

TreatyPrerequiste

Law system

APPENDIXRESOURCE MATERIAL SERIES No. 57

─

Yes

Yes

M.L.A.

Extradition

M.L.A.
Both

No

Yes

Yes

No

No

Yes

No

Yes

M.L.A. Minimum Both*2

Extradition Listing─Extradition

Yes

Extradition
No

Yes

M.L.A.

M.L.A.

Yes

Extradition

Both

No

Yes

No

Yes

No

Yes

No

No

Yes

No

Yes

No

Yes

No

Yes

CommonBe provided by the convention or treaty.

─Listing

Yes

Yes

Yes

No

No

Yes

Yes

Yes

Common*1

Minimum

Both

Yes

Yes

Yes

Yes

Yes

Yes

No

No

Civil

*2

All

Minimum Listing

Yes

Yes

Yes

Yes

Yes

Yes

No

No

Civil

Yes

Yes

Yes

Yes

Yes

Yes

No

No

Mixed

Minimum*2

All

Minimum*2 Minimum

Yes

Yes

Yes

Yes

No

No

No

No

Civil

REPUBLIC
SRI LANKA THAILAND UGANDA UZBEKISTAN JAPANOF KOREA

Minimum: Minimum imprisonment system
Listing: Listing system
Question is “Does your country grant extradition or mutual legal assistance based on the assurance of reciprocity?”

Listing Minimum*2

Minimum

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes
Yes

CommonCivil

Common Common(Note) M.L.A: Mutual legal assistance

Scope ofoffence

Double Criminality
Requirement

Assurance ofReciprocity*1

Domestic Law

TreatyPrerequiste

Law system

PHILIPPINESNIGERIA PAKISTAN PERU

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR

187

RESOURCE MATERIAL SERIES No. 57

TOPIC 2REFUSAL OF MUTUAL LEGAL ASSISTANCE OR
EXTRADITION
Chairperson:
Co-chairperson:
Rapporteur:
Co-Rapporteur:
Members:
Advisers:

Ms Luz del Carmen Ibanez Carranza
Mr. Shyam Sundar Prasad Yadav
Mr. Asan Kasingye
Mr. Chun Taek Lim
Mr. Yasuhiro Sanada
Mr. Masaaki YoshiuraProf. Shoji Imafuku
Prof. Keiichi Aizawa
Prof. Hiroshi Tsutomi

I. INTRODUCTION
This group looked at the refusal ofmutual legal assistance or extradition
based upon the following grounds:a) The principle of non-extradition forpolitical crimes.
b) The principle of non-extradition ofnationals.
c) Existence of the death penalty in therequesting state.
d) Insufficiency of case that is the basis
for the request for mutual legal
assistance or extradition.
Transnational crime is a global problem.
Countries all over the world are concerned
about the increase in the level andsophistication of transnational crime. To
facilitate international concerted efforts tocombat this problem, Mutual Legal
Assistance and Extradition procedures
have been emphasized.
According to the U.N. Model Treaty on
Extradition and Mutual Legal Assistancein criminal matters Article 1, stipulates in
specific terms the obligation to extradite.
“Each party agrees to extradite to the other,
upon request and subject to the provisionsof the present treaty, any person who is

188(Peru)(India)(Uganda)(Korea)(Japan)(Japan)(UNAFEI)(UNAFEI)(UNAFEI)

wanted in the requesting state forprosecution for an extraditable offense or
for the imposition or enforcement of asentence in respect of such an offense.”
Therefore, the basis and focus of treaties
on Mutual Legal Assistance andExtradition is the surrender of the persons
to another state and not geared to creating
impediments for the surrender of such
persons.
However, in practice extradition ormutual legal assistance maybe refused by
the requested state. The following aresome of the grounds upon which extraditionor mutual legal assistance maybe refused.
a) The principle of non-extradition forpolitical crimes.
b) The principle of non-extradition ofnationals.
c) Existence of the death penalty in therequesting state.
d) Insufficiency of cases that is the basis
for the request for mutual legal
assistance or extradition.
The rationale for refusal on the above
grounds varies from State to State.
However, reasons include; mistrust amongstates and the lack of confidence in one

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
another ’s justice system. Others are;political considerations, protection ofhuman rights, sovereignty, tradition,
notions of fundamental justice and fairness
embodied in domestic legal system, anddiscrepancies between legal systems.

II. REFUSAL OF EXTRADITIONBASED UPON NON-EXTRADITION
FOR POLITICAL CRIMES
Among the mandatory grounds forrefusal of extradition in many states is the
exception of non-extradition for politicaloffenses. If the offense for which
extradition is requested is regarded by therequested state as an offense of a politicalnature, then extradition is denied. This
principle became prominent after the
French Revolution. There was great
resistance to oppression and tyranny thus
embracing the fundamental rights andfreedoms of citizens. The principle has
been reinforced since the last century withthe growing concern and expansion of thehuman rights concept. This exception also
has been used extensively to cover
freedoms of political and religious opinions
and the expression of these opinions.
The U.N. Model Treaty on extradition
Art. 3 sub-paragraph (a), stipulates thatextradition shall not be granted “if theoffence for which extradition is requested
is regarded by the requested State as an
offence of a political nature.” This principle
has been incorporated in most of thebilateral and multilateral agreements
signed between and among nations all over
the world.
However, the application of this principle
has evolved in the last 30 years as a resultof the changing global political climate aswell as the way the political offences are
now perceived by society. Efforts have been
made to suppress the use of violence bydenying perpetrators the privilege ofpolitical cover to escape justice.
The implicit and explicit definition ofwhat constitutes a political offense iscomplex and no consensus has beenreached about its definition. In practice,offenses of a political nature have enlisted
a broad range of definitions. These varyfrom the motive of the offense, effect of theoffence, purpose of the offence, identity ofthe victim, democracy, human rights andthe immediate circumstances of politicalconflicts in different countries. Throughthe use of a so called negative definition,
the scope of political offences has beendelineated by specifying conduct, or
behavior that is not considered as
constituting a political offence.
Various international conventions havebeen elaborated and signed to specify actsthat shall not be regarded as offenses of apolitical character. These include:i) 1963 - Convention on Offences andCertain Other Acts Committed on
Board Aircraft (Tokyo Convention).
ii) 1970 - Convention for the Suppressionof Unlawful Seizure of Aircraft (Hague
Convention).
iii) 1971 - Convention for the Suppressionof Unlawful Acts Against Safety of
Civil Aviation (Montreal Convention).
iv) 1973 - Convention on the Prevention
and Punishment of Crimes Against
Internationally Protected Persons.
v) 1979 - Convention on the PhysicalProtection of Nuclear Material.
vi) 1979 - International Convention
Against the Taking of Hostages.
vii) 1988 - Protocol for the Suppression of
Unlawful Acts of Violence at Airports
Serving International Civil Aviation(Extends and supplements theMontreal Convention on Air Safety).
viii) 1988 - Convention for the Suppressionof Unlawful Acts Against Safety of
Maritime Navigation.
ix) 1988 - Protocol for the Suppression of189

RESOURCE MATERIAL SERIES No. 57
Unlawful Acts Against the Safely of
Fixed Platforms Located on theContinental Shelf.
x) 1991 - Convention on the Marking of
Plastic Explosives for the Purpose of
Detection.
xi) 1997 - International Convention for
the Suppression of Terrorist Bombings.
xii) 1999 - Convention for the Suppressionof Terrorist Financing.
Therefore, some countries acting on thebasis of the above conventions, have
explicitly stated in their treaties what does
not constitute a political offense.
In Thailand, “a murder or willful crime
against the life of a head of state or one of
the connecting parties of a member of that
person’s family, including attempts tocommit such an offense” is excluded fromthe scope of political offense.
In Malaysia, Article 3(2) of theExtradition Treaty Act, 1972, stipulates
that “the taking or attempted taking of thelife of a Head of State or a member of his
family shall not be deemed to be a politicalcrime for the purpose of this treaty.”
The European Union Convention on
Simplified Extradition, adopted in 1995
and ratified to date by the six (6) Member
States, states as a general rule that thepolitical offense exception shall not apply
between the Member States. There maybe
some reservations with respect to offenses
which are covered by the Council ofEuropean Convention on the Suppressionof Terrorism from 1977. These include not
only offenses defined in a number of U.N.
Conventions (on high-jacking), the safetyof civil aviation and the taking of hostages
mentioned above, but more generally
serious offenses of violence affecting thelife, physical integrity or health of persons.

190

III. THE PRINCIPLE OF NONEXTRADITION OF NATIONALSThe United Nations Model Treaty on
Extradition, Article 4 (a), enables arequested state to refuse extradition of its
nationals, but includes “prosecution in lieu”
alternatives. This is an optional ground.
However, the international treaty practiceis that nationality of the requested person
is a ground for optional refusal in sometreaties but mandatory in others.
There is a firmly held belief that many
countries do not want to extradite theirnationals. This has been deeply entrenchedin their constitutions. 1 Previously, thispractice was mainly held by civil law
countries. On the contrary, common law
countries, such as the United States ofAmerica, do not have such a policy. Such
opposing policies are said to derive fromthe different policies regarding how toestablish criminal jurisdictions in criminalcases. The civil law countries tend toestablish jurisdiction over both crimes
committed in their territories and crimes
committed by their nationals abroad whilecommon law countries tend to establish
only territorial jurisdiction. Therefore,
since it is generally possible for civil law
countries to try their own nationals who
commit crimes on a foreign soil, they havea policy to decline such requests, and viceversa. It is also understood that the groundof the restriction stems from distrust in
foreign criminal justice systems and theprotection of its own nationals.
However, in practice, there is no sharp
distinction between the two legal systems.
Some common law countries especially in
1

For an in-depth analysis of the problem of nonextradition of nationals, see Michael Plachta,(Non-) Extradition of Nationals: A Neverending
Story?, 13 Emory International Law Review 77159 (1999).

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
the European Union, can extradite theirnationals only to requesting countries
within the Union, while Scandinavian
countries which are civil law countries also
extradite their own nationals among
themselves.
The exception of non-extradition for
nationals jeopardises international efforts
to fight transnational organized crime.
H o w e v e r, s e v e r a l m u l t i - n a t i o n a lconventions, such as the U.N. Vienna
Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances, 1988 and the Hague
Convention for the Suppression of
Unlawful Seizure of Aircraft, obligate
member states to establish jurisdiction
over cases when they do not extradite afugitive who is alleged to have committeda crime defined in the conventions. In theEuropean Union for example, the political
will of the Member States is to make no
distinctions, within the Union, andbetween citizens of the Union. This is agreat stride towards erasing such an
exception from their extradition laws andtreaties. However, it is important to notethe following.
(i) States should take giant strides
towards enacting laws that allow theirnationals to be extradited. Germany
for example, has submitted a bill to theparliament seeking to amend article 16of its constitution by allowing
extradition of its nationals to othermember States in the European Unionand international criminal tribunals.
(ii) States can extradite their own
nationals for trial abroad on condition
that convicted fugitive offenders willserve their sentences in their respective
countries.
(iii)Extradition of a national can be allowedwith the consent of the offender.
(iv) S u r r e n d e r o f n a t i o n a l s c a n b e
considered as a new form of bringing

fugitives to face justice. This has
enabled many offenders who committed
crimes in Yugoslavia and Rwanda to betried before the Ad Hoc International
Criminal Court for the former
Yu g o s l a v i a a n d t h e A d H o cInternational Criminal Court for
Rwanda, respectively. However, somecountries still refuse to surrender theirnationals to international tribunals
because they consider surrender asamounting to extradition.
v) The principle of aut dedere aut judicare(extradite or prosecute) should be
implemented to bring fugitive offenders
to justice. If the possibility of an
offender’s impunity is recognised as themost serious danger caused by thepractice of non-extradition of nationals,
then from the point of criminal justice
it should not matter in the territory ofwhich State he/she is prosecuted andpunished as long as justice is done.
However, this principle should beapplied to serious international crimes that
affect human society generally. The
principle should not be used as a last resort
when extradition is based on the groundsof nationality of the fugitive offender.
Participants found it desirable tosupplement the system based on theprinciple aut dedere aut judicare by theprotection against double jeopardy (nebris
in iden) to avoid the prosecution andconviction of the sentenced person in therequesting country, based on the same factsof the offence.

IV. EXISTENCE OF THE DEATH
PENALTY IN THE REQUESTING
STATE
Article 4 sub- paragraph (d) of the UN
Model Treaty, provides an optional groundfor refusing extradition. This arises when
the offense for which extradition is being

191

RESOURCE MATERIAL SERIES No. 57
sought carries the death penalty, unless therequesting state undertakes not to impose
the death penalty or not to carry it out if it
is imposed.
While some countries have capital
punishment, other countries haveabolished capital punishment. It cangenerally be observed that the lattercountries tend to refuse extradition of
fugitive offenders to the former based on
the ground that capital punishment may
possibly be imposed. In reality, theexception becomes a mandatory one as
most countries in Western Europe forexample refuse to surrender a fugitive if
he/she faces the risk of being sentenced todeath. Some examples of this exception
include:i)

In the recent past, Uganda made arequest to the United Kingdom throughthe diplomatic channel for the
extradition of two persons involved ina murder case. They faced the death
penalty in Uganda if convicted. The
request was not granted on the grounds
that the United Kingdom had abolishedthe death penalty. The two fugitives arestill believed to be at large in the United
Kingdom.

ii) In a recent case where an Iranian
fugitive was sought by both Japan and
Iran from the Netherlands the latter’s
government granted extradition to
Japan, because the offender faced adeath penalty in his mother country
while Japan gave an assurance that theprosecutor would not seek a death
penalty and therefore it would not be
imposed.
Therefore, many countries are amending
their domestic laws to accommodate therequirement that in cases where capital
punishment is likely to be imposed, therequesting state will not carry it out. One

192

of such countries is India. In 1993, India
amended its extradition law providing thatin extradition cases, the original death
sentence in the requesting State will be
substituted with life imprisonment or alesser sentence.
In the recent past, there is a call for theabolition of capital punishment especiallyemanating from human rights advocates.
However, the death penalty exception to
extradition is opposed by countries thatstill retain capital punishment in theirlegal systems. The arguments forwarded
by those countries have been as follows;i)

Insisting on the death penalty
exception hampers the smooth flow of
extradition between states thereby
diminishing the spirit of international
cooperation to suppress crime.
ii) It interferes with the judicial discretionof the requesting state thereby
encroaching upon the sovereignty of
another state.
iii) Diplomatic treaties and the judicial
system are two different andindependent institutions. Whereas therequesting state may assure therequested state that capital
punishment will not be imposed, thecourt may go ahead and impose it
thereby straining the relationship andcooperation of the two countries.
However, these countries should,
Provide an adequate assurance that thedeath penalty, if imposed, would not be
carried out.
ii) Involve making use of the executive
authority to commute the sentence bytaking advantage of the prerogative ofmercy or pardon available in their legal
system.
iii) A m e n d t h e i r d o m e s t i c l a w s t oaccommodate the requirement of not
imposing capital punishment in
extradition matters. Such statesi)114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
should adopt a provision that stipulates
the surrender of an accused from therequested country. A trial court isbound by the conditions laid down by
the requested state and agreed upon by
the executive of the requesting state.
iv) Apply the principle of aut dedere aut
judicare in cases where extradition iscompletely denied as a result of refusal
to assure the requested state by therequesting state that capital
punishment would not be imposed.

However, extradition procedures aredifferent in different countries, therefore,
it is difficult to determine how muchevidence would be required in order togrant an extradition request. The U.N.
Model Treaty does not specifically define
how much evidence is required and whoshould decide on such an issue. Therefore,
there is no universal standard on theamount of evidence required to grant an
extradition request. Different countries set
different standards.

V. INSUFFICIENCY OF EVIDENCE
THAT IS THE BASIS FOR THE
REQUEST FOR MUTUAL LEGALASSISTANCE OR EXTRADITION

It may be far fetched to envisage asituation where no evidence would be
required to grant an extradition request bya requested State. Practical experience has
tended to show that even countries that do
not require any amount of evidence to grantan extradition request are reluctant togrant it. This may arise when during theprocess of extradition, an offender claims
that he/she is being persecuted as there isno evidence to show that he/she committed
the offence. This may result in an acquittalof the offender. It is therefore advisable thatcountries should keep track of the standardof evidence that is required by different
countries. This helps in establishing thestandard of evidence when making
requests.

Article 3, of the U.N. Model Treaty,
stipulates mandatory grounds for refusalof an extradition request. However,countries are free to add to this article thefollowing further mandatory ground forrefusal “ if there is insufficient proof,
according to the evidential standards of therequested State, the person whose
extradition is requested is a party to theoffence.” Inherently, this means that arequested country can refuse an extradition
request on the ground that the evidence
accompanying the request is insufficient.
In the past, common law countries
required that extradition requests sent tothem showed proof of apparent guilt while
civil law countries only required aminimum amount of evidence. However,in contemporary extradition practices,
there are no sharp distinctions between the
two legal systems. The prima facie caserequirement, developed by England andadopted by several common law countries
is an old and outdated concept. Even
England has partly abolished thisrequirement in extradition matters. Focus
now is becoming increasingly placed on theamount of evidence required to grant an
extradition request.

If the request concerns a fugitive that issought for trial, it should only be requiredthat evidence be adduced that he/she
committed the offence. In order for thisevidence to be taken as satisfactory, it has
to be consistent with the extradition
request. However, it is very difficult for arequesting country to provide all therequired evidence in the early stages of theproceedings. This renders extradition ormutual legal assistance even more difficult
to be obtained. Several countries have
moved away from insisting on being
furnished with all the evidence in order togrant an extradition request. This hashelped to expedite extradition requests.

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The following are some of the goodpractices.
i)

The United Kingdom abolished theprima facie case requirement in 1989
in relation to non-commonwealthcountries only.
ii) Australia has tried to make their
extradition laws analogous to those of
the civil law countries.
iii) In 1990, the Commonwealth scheme for
the Rendition of Fugitive Offenders wasamended to permit the Commonwealthcountries to opt to abrogate the prima
facie case requirements.
iv) The United States of America insists
on evidence though not the wholeevidence. The requirement is what is
considered sufficient to warrant
extradition but not establishing theapparent guilt of the offender.
v) Pakistan has liberal provisions forreceiving evidence against a fugitive
offender because it admits
authenticated official certificates offacts and judicial documents stating thefacts against fugitive offenders as
evidence. Similarly, in magisterial
inquiry in Pakistan, the warrants,
depositions of Statements on oath
which purport to have been issued,received or taken by any court of justiceoutside Pakistan of copies there of or
certificates or judicial documents
stating the fact of conviction before any
such court are also admitted.
The above examples show thatextradition jurisprudence requires justenough evidence to issue an arrest warrant
and not to establish the totality of theevidence.
As far as mutual legal assistance isconcerned, theoretically, there should be norequirement imposed on the requesting
country to provide evidence at its request.
It could be said that the opposite rule194

should apply to this form of international
cooperation to that applicable toextradition. However, in practice, evidence
may be required in certain requests suchas seizure of assets, searches, andobtaining copies of bank records, which are
secret. Various countries require someevidence before mutual legal assistance canbe granted. The U.S.A. for example, in thebilateral treaties it has signed withdifferent countries, requires that evidence
be adduced if mutual legal assistance is tobe granted in specific cases such as
obtaining bank records in money
laundering cases.
VI. RECOMMENDATIONSi)

States should take giant strides
towards enacting laws that allow theirnationals to be extradited.
ii) States can extradite their own
nationals for trial abroad on condition
that convicted fugitive offenders willserve their sentences in theirrespective countries.
iii) Extradition of a national can beallowed with the consent of theoffender.
iv) S u r r e n d e r o f n a t i o n a l s c a n b e
considered as a new form of bringing
fugitives to face justice.
v) The principle of aut dedere aut judicare(extradite or prosecute) should beapplied and implemented in cases
where extradition is denied on two
grounds: nationality of an accused andthe death penalty.
vi) It is advisable that countries should
keep track of the standard of evidence
that is required by different countries.
This helps in establishing the standardof evidence required by various
countries when making requests.
vii) As far as mutual legal assistance isconcerned, theoretically, there should
be no requirement imposed on therequesting country to provide evidence

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
in its request. It could be said that the
opposite rule should apply to this formof international cooperation to thatapplicable to extradition. However, inpractice, evidence may be required incertain requests such as seizure ofassets, searches, and obtaining copies
of bank records.
viii) States that still retain the death
penalty should take advantage of theprerogative of mercy or pardon
available in their legal systems tocommute the death sentence to life
imprisonment or a lesser sentence.
ix) In Japan, the political offence
exception is defined in terms of pureand relative terms. Pure politicaloffence is whereby the political motiveof the offender overrides the intention
to commit an offence and vice versa.
In future the feasibility of thisdefinition may be considered by othercountries to determine possible
extradition of fugitive offenders.

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TOPIC 3
THE SCOPE OF ASSISTANCE TO BE RENDERED
TO THE REQUESTING STATE WITHIN THE FRAMEWORK OF
MUTUAL LEGAL ASSISTANCE
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporterurs
Advisers

Mr. Abdul Jalal
Mr. Rajnarayan Pathak
Mr. Yoshimatsu
Mr. Sotonye L. Wakama
Mr. Datinguinoo
Mr. SazukiProf. Hiroshi Iitsuka
Prof. Chikara Satou

I. INTRODUCTION
In recent times, the rapid developmentof technology particularly in the fields ofcommunication and transportation has
successfully reduced the world to a “global
village”. These technological advanceswere intended to benefit the entire world
by bringing different cultures together, andfostering a better understanding between
the diverse religious, ethnic and culturalgroupings the world over. Unfortunately,
they have also been exploited by acriminally minded few, who have dedicatedthemselves to the usage of this equipment
for the purpose of individual gain, and in
the process circumventing and trampling
upon all laws, ethics and regulations thatstand in their way.
This unfortunate development is no
better reflected than in theinternationalisation of crimes, which by
virtue of their cross-bordercharacterisation have led to the coining of
the term “trans-national crime”. These
crimes which are perpetrated by organizedcriminal gangs include, but are not limited
to drug trafficking, illicit arms dealing,
human trafficking, international fraud andterrorism to mention a few. In the process,196(Malaysia)(Nepal)(Japan)(Nigeria)(Philippines)(Japan)(UNAFEI)(UNAFEI)

these criminal fraternities accumulate
stupendous wealth, which is used tofurther their nefarious ends and isintermingled with legitimate monies
through the process of laundering andinvestments in legal enterprises.
The fight against organized transnational crime has thus become the concernof law enforcement agencies in every partof the world. In consideration of thesovereignty of nations, it has become
necessary to evolve new approaches tocombat these crimes. As was said by the
Attorney General of the United States ofAmerica, Janet Reno, “....we cannot
continue to use 19 th century methods tofight 21st century crimes”. This statement
is not limited to the technology required tosuccessfully combat organized crime, butalso, if not moreso refers to the everincreasing need for co-operation between
nations to successfully achieve this end.
This 114 th Crime Prevention Seminar
examines two forums of co-operation
between nations viz. Extradition and
Mutual Legal Assistance Treaties (MLATs).
It is with respect to these two types oftreaties as a means of combating organizedtrans-national crime that problems were114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
highlighted, discussed and in some cases
recommendations proffered. The subject
matters and discussions under topic 3 areas reflected below in the following order:●●●

The structure and function of theCentral Authority for the purpose of
Mutual Legal Assistance.
The confiscation of the proceeds ofcrime and the modalities for sharing.
The feasibility of granting mutual
legal assistance through newinvestigative methods andtechnologies.

II. STRUCTURE AND FUNCTION
OF THE CENTRAL AUTHORITY
FOR THE PURPOSE OF MUTUALLEGAL ASSISTANCE AND
EXTRADITION
A. Problem
Participants agreed that most central
authorities presently appeared to causedelay in the response to, and execution ofrequests. It was with this in mind
therefore, that discussion centred on the
expectations of a central authority in termsof its function rather than its structure.
Additionally, the question as to whether adifferent central authority was necessary
to address requests on mutual legal
assistance as opposed to extradition was
raised as mutual legal assistance andextradition represented different
intentions and to a certain extent different
procedures.
B. Response
1. The seminar observed that mostcountries present the Department ofJustice or the Office of the Attorney
General as the central authority. It
noted however, that a few countries
have more than one central authority,

which varied dependant on the content
of the request. The purpose andfunction of the central authority was
reduced to three essential duties:i.

It is to be accessible and visible as acontact point. This means it shouldhave a clear unambiguous reference(name), which should also include anaddress(es), telephone and facsimile
numbers, e-mail address(es) and anyother information that will enableeasy access by communication to theauthority in normal or urgent times.
ii. It is to oversee the administrativeand executive processing of all
requests referred to it. It is thus not
to exist merely as a mail box, but is
expected to actively follow up on all
requests giving directives andinformation as is necessary.
iii. It should thus be staffed withcompetent hands versed andexperienced in this field, and withthe requisite logistics to accomplish
its duties with the minimum ofinconvenience.
2. The seminar also sought to make aclear distinction between the “central
authority” on the one hand, and the“competent authority” on the other.
While the former refers to theindividual or institution through which
requests are made and received anddirectives given with respect to their
execution, the latter refers to theagencies or departments assigned thelegal authority to carryout, enforce andimplement the execution.
3. On the question of the number ofcentral authorities appropriate in agiven state, the seminar felt it best to
leave this to the discretion of the stateas this was an issue of domestic policy
upon which international consensus
would be difficult to achieve. It was

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RESOURCE MATERIAL SERIES No. 57
rather advocated that treaties should
concentrate on ensuring theavailability as quickly as practicable of
all information on the chosen central
authority to facilitate expeditious
communication. The seminar alsostressed that in as much as the
structure of a central authority could
not be dictated that each state should
nonetheless endeavour to ensure its
functionality by staffing it withadequate personnel and equipment andensuring the same for all competentauthorities. The seminar thus
concerned itself more with thefunctionality of the central authority,
than with its number or structure.

B. Response

III. CONFISCATION OF THE
PROCEEDS OF CRIME AND
MODALITIES FOR SHARING

3. Participants were of the opinion thatthe sharing of assets between
participatory states to an investigation
particularly of organized transnational
crime, recognised and acknowledged
the co-operation necessary to fightorganized crime, and the efforts of otherstates and their respective law
enforcement agencies. In this respect
therefore, the seminar recommended
that the most appropriate avenue forasset sharing are bilateral treaties,
since this problem is insufficiently
addressed in the domestic legislationof most states. These bilateral treaties
would thus provide the legal basis forsharing the proceeds of crime between
the participating states.

A. Problem
The illegitimate proceeds of criminal
activity in many states are subject toconfiscation on the orders of a competentcourt after due process. However, manyof these legal provisions are silent on thedisposal of these confiscated assets, andthus do not consider the possibility ofsharing the assets with another state. This
unfortunate situation exists, despite thefact that in many cases involving transnational criminal activity, the confiscatedassets in question were illegally acquired
through criminal activity in one state, butnecessitated the involvement through legal
assistance of law enforcement agencies
within another state. The issue becomes
further complicated when these assets areinvested in legitimate enterprises, as the
tracing of these assets requires expert
knowledge and experience. In addition, if
an agreement on sharing is arrived at whatyardstick, criteria or modality is to be
adopted in respect thereto.

198

1. The seminar unanimously agreed thatcriminal proceeds should be subject toconfiscation by order of court, and thatin states where this legal provision did
not exist (if any), the state or statesconcerned should be encouraged to solegislate.
2. The seminar also sought to make aclear distinction between confiscationand disposal, as confiscation referredto the legal process of permanently
depriving a person of his assets infavour of the government; disposal
refers to a decision on its subsequentuse.

4. As opposed to bilateral treaties, themultilateral conventions are not well
suited to regulate all the substantive andprocedural problems associated withasset sharing. The most negotiators ofthese conventions are able to agree on isa clause that encourages the stateparties to conclude bilateral agreements
and arrangements to this effect.

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
5. Before the issue of the modalities forsharing was broached, the seminarcautioned that the legitimate third
party interests in confiscated assets
should be acknowledged, and that partof the confiscated assets excluded fromsharing.

one state, and use it for prosecution inanother certain problems become apparent.
This is all the more so when the legal
systems and procedures of the countries
involved are different. The two principle
problems were discussed under theheadings of “legal” and “practical”.

6. The actual modalities or criteria for the
sharing would have to be agreed uponby the states on a case by case basis as
the variables involved make the issue
too complicated for the presentation ofa single formula. Where illegitimately
acquired assets have been intermingled with legitimate investments,
the proportion that can be traced andidentified to the satisfaction of thecourts should be subject to confiscationand disposal.

B. Response

7. Finally, not all confiscated assets
should be subjected to disposal without
careful evaluation of the other states’interests as some may have a cultural,
national or even a spiritual significanceand cannot be subjected to evaluation.
In these instances, it would beappropriate to return the asset inquestion in the greater interest of
mutual co-operation andunderstanding.
IV. FEASIBILITY OF GRANTING
MUTUAL LEGAL ASSISTANCE
THROUGH NEW INVESTIGATIVEMETHODS AND TECHNOLOGIES
A. Problem
The seminar recognised andacknowledged that with the passage oftime, new methods, techniques andtechnology were being applied to theinvestigation and prosecution of cases.
However, that though these techniques andmethods had their advantages, in an era
when it is necessary to obtain evidence in

1. The seminar identified the following
technologies that have been employed
to some degree or other in modern law
enforcement and criminal justiceprocesses:
i. Audio Tape Recordings
ii. Video Tape Recordingsiii. Telephone Conferencing
iv. Still and Movie Photography
v. Video Conferencing (Satellite Link)
vi. Close Circuit Televisionvii. Electronic Surveillanceviii.Satellite Surveillanceix. Electronic Bugging
x. Fingerprint Analysis
xi. DNA Analysis
xii. Controlled Delivery
The list was considered not exhaustive
however, each of these methods ortechniques of investigation had at one timeor other, particularly in developed
countries, been applied in granting or
obtaining mutual legal assistance in:i.

Recording of evidence - oral andphysicalii. Searches, seizures and confiscations
iii. Examination of objects and sites
iv. Provision of informationv. Locating and identifying persons
and objects, andvi. Other types of assistance.
2. Having acknowledged the problems,
the advantages of these modern
investigative techniques are as many

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RESOURCE MATERIAL SERIES No. 57
as the techniques are varied. Firstly,
these techniques can (under certain
conditions), and have been, successfully
employed in investigations and court
proceedings. Secondly, being purely
scientific methods they are verifiablethrough other scientific methods ofanalysis and therefore the authenticityof the evidence is ascertainable. Thismeans thirdly, that their utility is both
effective and pro-active. In the case of
court proceedings, and in certain
instances investigations, some of thesetechniques have the capability to
reduce the risk, time and expense
associated with travel, andconsequently limit the time and cost of
the entire judicial process. They also
and particularly where organized crime
is concerned, can where necessary
afford protection to witnesses who may
be in danger when testifying. Finally,
modern scientific technology supports
and protects the rights of the individual
by ensuring through indisputablemeans that right person is committed
to prison, where older more overbearing methods of investigation left amargin of doubt. In this respect science
furthers the interests of democracy.
3. The legal problems associated withthese new techniques were best
illustrated in the use of controlled
delivery and video link technology.
Controlled Delivery it was noted was
one of the major outcomes of the 1978
United Nations Convention on Drug
Trafficking held in Vienna, Austria. It
is the process of allowing prohibited
narcotic substances to be transported
through various territories, under thecovert surveillance and “supervision” oflaw enforcement agents. The objective
is to identify trafficking routes, volumeof traffic, the means employed and thetraffickers themselves, with theultimate aim of devising strategies to200

prevent further trafficking of thesesubstances. This technique has over
the years proven an extremely effective
way of combating the drug trade, andas a result the technique has been
applied to other crimes with equal
success. However, the technique has
not been without its birth pangs.
Because of the differences hitherto
mentioned in legal systems, policies
and approaches to crime resolution
reflected by nations the world over;controlled delivery has met with some
“opposition”. This perhaps principally
extends from a legal notion that “...hewho comes for justice must come withclean hands”. The point often made isthat since the law enforcement agents
knew of the trafficking of drugs, but did
nothing about it, they have by theiromission committed a crime. Therefore
perhaps, the value of their testimony
and indeed the evidence (drugs) isquestionable.
4. A further example of the legal problems
that have to be resolved with newinvestigative techniques was
illustrated by the increasing use ofvideo link (via satellite) technology inobtaining testimony and information.
The question here is one ofadmissibility in the courts as in mostcountries there exist no legislation inthis respect, and the courts have not
adopted it as part of their “Judicial
Practice”. Furthermore, most courts forthe preservation of justice demand thephysical appearance of witnesses andnot matrix imagery no matter how
impressive it may seem. In addition to
the above, some of these techniques
constitute an infringement of the rightsof the individual particularly where
electronic surveillance is deployed ininvestigations. As opposed to the four
fundamental human rights recognised
as non-dirigible (the right to life; the114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
prohibition on torture and other formsof cruel, inhuman and degrading
treatment and punishment; theprohibition on slavery; and freedom
from ex post facto or retroactive
criminal laws), governments may
impose some restrictions as necessary
in a democratic society on other rights;
such as the right to privacy.

and techniques, methods used incombating transnational organizedcrimes committed through the use ofcomputers, telecommunications
networks or other forms of modern
technology, detecting and monitoring of
the methods used for the safe transfer,concealment or disguise of proceeds
derived from such offences.

5. One of the practical issues raised by the
new investigative techniques borderedon the technical and financial
problems. Some of these techniques
involve infrastructure and equipment
the cost of which cannot reasonably be
expected to be met by some law
enforcement agencies or theirgovernments as resources are limited,
and their priorities different. This ofcourse could be over come ifgovernments are willing to dedicate apercentage of confiscated criminal
proceeds to the fight against crime.

7. The feasibility of their use must
therefore depend on the respective lawsof the states involved, which if notcompatible may necessitate provisions
governing the acquisition of evidenceby these means in the respective
mutual legal assistance treaties. As arecommendation, consideration could
be given to the organising of a forum
or seminar, where technologists,
judicial officers, law enforcement
personnel and others could meet anddiscuss the problems associated withnew technologies in investigation andprosecution, with a view to increasing
the “comfort level” of the moreconservative minded professions.
Ultimately, the fight against organizedcrime will require sacrifices - academic
and physical.

6. Another practical problem discussed
bordered on the training and technicalcompetence of personnel to handle thesort of equipment used in theseinvestigations. It is obvious thattraining would have to be provided in
the spirit of international co-operationby countries whose understanding ofthese new methods factored its
implementation. Again, the issue of
cost would have to be addressed, but
could be overcome if nations co-operate
in the interest of a crime free world.
This desire has been expressed in thedraft Convention against
Transnational Crime (TOC), which
provides that States Parties shall assist
one another in planning andimplementing research and training
programmes designed to shareexpertise in various areas. These areas
include the collection of evidence,
modern law enforcement equipment

V. ADVANTAGES ANDDISADVANTAGES OF BILATERALMUTUAL LEGAL ASSISTANCE
TREATIES
A. Problem
Because of the possibility of the numberof countries that could become signatories
to a multilateral treaty (there are 186 in
the United Nations), it was considered an
exercise in futility to examine theadvantages and disadvantages of amultilateral treaty. There are simply too
many variables involved in the equation.
It is however, a lot simpler to examine themerits and demerits of these treaties from201

RESOURCE MATERIAL SERIES No. 57
a bilateral perspective, which is theapproach adopted.
B. Response
1. One of the advantages of Mutual Legal
Assistance Treaties (MLATs) lies in thefact that it places international cooperation on a firm footing by providing
predictable areas of co-operation
between countries.
2. MLATs acts as a vehicle of co-operation
between consenting countries
regardless of their individual legal
systems.
3. Mutual legal assistance treaties assist
individual states cope more effectively
with criminal cases that have transnational criminal characteristics.
4. Such treaties facilitate the receiving
and rendering of assistance by way of“compulsory orders”. This would meanthat by signing and ratifying a treaty,
the parties to it undertake an express
obligation to render each other anassistance as defined in the treaty,
unless the requested state invokes aground for refusal.
5. They also provide a mechanism forevaluating the application of thesetreaties in relation to crime resolution.
6. These treaties also allow for methods
and procedures, which ordinarily may
not have been acceptable to the judicial
systems involved. In addition, manyof these treaties allow for direct contact,
thus avoiding the formal diplomaticand cumbersome channels ofcommunication. This speeds theprocess of criminal justice and theultimate effectiveness of crime
management.

202

7. Finally, in an era when almost each law
enforcement agency (police, customs,
immigrations, drug law enforcement
agency etc.) has some form ofagreement or other with a counterpart
agency in another country, MLATs
reduce the legal basis for co-operation
to one document, which inevitably
simplifies the process, and opens therequesting agency to the benefits andco-operation of all the other agencies.
It must be stated however, that MLATs
are not the only basis for co-operationin mutual legal assistance as domestic
laws of some states, reciprocity and thenotion of comity have served similar,
though slightly more constrained rolesin this respect.
8. On the other hand, it is noticed that
there are some defaults with mutual
legal assistance treaties. The first ofthese is that ratification can take years
after the actual treaty has been signed,
and for as long as the ratification is heldin abeyance, so long shall the treaty beineffectual. It must be mentioned
however, that usually there exists someform of co-operation between countries
prior to their entering into formal
agreements, which reflect to a large
degree the pre-existing levels of cooperation. Such formal agreements
are usually accompanied with
“Executive Agreements” on cooperation, which forms the basis ofcontinued interaction before thetreaties are formally ratified.
9. They can lead to an inequality in termsof benefits and obligations. One of thestates is more likely to make morerequests than the other, which means
the requested state seemingly does
more work. However, the more bilateraltreaties entered and signed the greater
the probable general benefit from theirusage.

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
10. The opening of borders through thesetreaties itself can lead to security
implications, which themselves may
ultimately be more problematic thanthose of the criminals which lead to thetreaty in the first place.
The question of the utility of mutual
legal assistance and extradition treaties inrelation to the problems discussed above
are in the final analysis to be dealt with byindividual states. It perhaps may be useful
to mention that with the growth oforganized transnational crime it has
become imperative that government focus
their attention in these areas.

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MAIN ACTIVITIESPART TWORESOURCE MATERIAL SERIES
No. 57Work Product of the 115th International Training Course“CURRENT ISSUES IN CORRECTIONAL TREATMENT AND EFFECTIVE
COUNTERMEASURES”

UNAFEI205

115TH
INTERNATIONAL
TRAINING
COURSEVISITING
EXPERTS’
PAPERSVISITING EXPERTS’ PAPERS

CURRENT ISSUES IN CORRECTIONAL TREATMENT AND
EFFECTIVE COUNTERMEASURES:
OVERCROWDING OF PRISONS,
THE MANAGEMENT OF WOMEN, FOREIGN PRISONERS AND
THOSE CONVICTED OF DRUG RELATED OFFENCES.
AN AUSTRALIAN PERSPECTIVE
Luke Grant*
LECTURE 1. OVERCROWDING
I. INTRODUCTION
The rising number of people in prison
around the world has been the subject ofinternational interest particularly over the
past two decades.
The number of people in custody percapita varies enormously over time andbetween jurisdictions and interpretation ofthese differences particularly between
countries is difficult. What is clear
however, is that the use of imprisonment
as a form of punishment and incapacitation
is increasing in most countries and that
overcrowding (which I would define as ashortage of space and resources relative tothe size of the population) in many places
is becoming a significant problem.
It is also apparent that there is no one
single factor that can be identified as being
primarily responsible. There has been a
lot of conjecture about the impact of theinternational drug problem and about
rising crime rates, but researchers haveconsistently failed to show that this is theroot cause.
Overcrowding itself is more than just a
shortage of bed space, it has implications
for the levels of programmes activity,
hygiene, violence etc. It can be an obstacle* New South Wales, Department of Corrective
Services, Australia

to the realisation of many of the objectivesof a modem correctional system.
The dilemma of prison overcrowding
encourages a number of logical solutions.
The approach that is taken in each country
will be the outcome of a number of factors
including the philosophy of punishment,
the viability of alternatives toimprisonment, economics, political andpopulist ideology and the flexibility of thelegislative framework. There are
essentially three ways to solve the problem:
1. Reduce the number of prisoners
2. Increase the scale of available facilities
and resources (build more gaols)
3. Rationalise the available resources andfacilities e.g. to double up inaccommodation areas and toreallocates funds for rehabilitation
programms to meet more basic needs
like food and clothing.
Unfortunately for prison administrators
it is usually only the third of these options
over which they have any direct influence.
In some countries the option of reducing
prisoner numbers will not be considered
because the number of people in custody
may be regarded as a positive outcome ofgood law and order policies. In othercountries the option of building more gaols
may not be possible because of economic
constraints. In many jurisdictions a
combination of each of these approaches
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RESOURCE MATERIAL SERIES No. 57
will prevail. This is certainly the case inAustralia.
Whatever the approach, rigorous
research is required to understand thecauses of overcrowding and to ensure thatwhatever strategies are adopted do produce
the desired outcome. A solid research baseis also required to make accurate
predictions about the prison population
which can then be used to inform theplanning process and decisions about the
impact of new policies and legislation. In
most jurisdictions including Australia,
there are large gaps between theory,
empirical research and practice.
In this paper I will explore some of thetheories about prison population growth.
I will then use the situation in New South
Wales as a case study to identify factors
contributing to the recent inmate
population increase. I will then outline
some of the strategies we have used andprovide an overview of why these may nothave been as effective as hoped. I am notproposing that the NSW experience isrepresentative, but that the approach toanalysing the problem has broad
applicability in all jurisdictions.
A note about comparing rates ofimprisonment between countries
The main indicator used for measuring
the use of imprisonment is the number of
persons in custody per 100,000 total
population. The number of people
imprisoned is either taken on a particulardate (usually 30 June) or from the average
daily population over a given year. While
this definition may be standardised, thefirst problem that comes when making
comparisons between countries is exactly
who is included in the total population.
Some countries for example Australia andCanada do not include offenders under theage of 18 in their counts. Other countries
maintain separate statistics for sentenced

208

and unsentenced components of the
population or are only able to account for
numbers imprisoned in federal or state
facilities and not on local lock-ups.
Forensic patients in secure psychiatricfacilities may not always be included. Somecountries include people detained for
immigration violations who are awaiting
deportation, others don’t. The problem
then with making comparisons is thatdifferences in rate may simply be
attributable to differences in the Counting
method.
A second problem is that the number ofprisoners per 100,000 population is staticand obscures the relative impacts of thefollowing dynamic determinants:•••

The relative number of inmates on
remand, the rate of admissions and thenumbers bailed, the length of stay pretrial
the relative number of sentenced
prisoners, the rate of sentenced
admissions, the average length ofdetention
the effect of parole and/or remissions

Some theories on the rate of
imprisonment
It is useful to examine some of thetheories put forward in the international
literature to account for the recent increasein numbers in prisoners. My own
experience indicates that those ingovernment who make decisions about
strategies for managing overcrowding
seldom have a good understanding of thisbody of work and this had led to ill
conceived policies.
Most of the international literature on
prison numbers has come from the UnitedStates and United Kingdom that have bothexperienced unprecedented increases in
the numbers of people in custody. In
particular I would recommend as a classic

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
text on the subject a book called The Scaleof Imprisonment by Franklin E Zimringand Gordon Hawkins which althoughpublished in 1991 is still provides a mostcompelling analysis of the American
situation. For an international comparisonof imprisonment rates read Young and
Brown’s Cross-national Comparisons of
Imprisonment1 I would also recommend apaper by Caplow and Simon published in
1999 and entitled “Understanding Prison
Policy and Population Trends”.
Theories about the determinants of theprison population have historically failed
to give planners the capacity to accurately
predict changes to the population. Thismay be because they have tended towards
over-simplification. A well known flawed
theory was put forward by Blumstein and
Cohen in 1973 who after analysing therelatively stable American prison
population prior to 1973 proposed thatpunishment was a self regulating system.
They argued that:
if prison populations get too large.
Police can choose not to arrest,
prosecutors can choose not to press
charges, judges can choose not toimprison... Similarly if the populations
drop too far below the stable rate thenpressure would develop to sanction
certain kinds of behaviour that had
previously been tolerated.
Unfortunately for Blumstein and Cohen
the population of prisoners started to climb
exponentially the following year and thisincrease has not abated.

The rate of crime and the rate of
imprisonment
There is a body of contradictory andconfusing evidence that attempts toestablish a causal relationship between therate of crime and the rate of imprisonment.
Contrary to popular and political opinion
there is no clear relationship between theimprisonment rate and the crime rate,though it has been argued that such a
relationship does exist for specificcategories of crime e.g. serious violent
crime and this category of offender.
Zimring and Hawkins compared
imprisonment rates in the USA with
reported crime rates including the FBI
index crime rates. They found:the lack of a direct and simple
relationship that would enable us tosuccessfully explain most fluctuationsin the rate of imprisonment byreference to changes in crime rates.
Young and Brown (1993) carried out acomprehensive cross national comparisonof imprisonment and concluded similarlythat:
our conclusion would be that only asmall measure of the differences inprison populations between one
jurisdiction and another or thechanges in prison populations within
particular jurisdictions seem to berelated to crime rates. Moreover tothe extent that there is a relationship,
we can not be certain that it is a causal
one.
If the rate of incarceration is not directly
related to the rate of crime then what
explains it?

1Young, Warren and Mark Brown. 1993. Cross
National Comparisons of lmprisonment. In Crime
and Justice: A review of Research, Vol 17.
University of Chicago Press

The literature can be conveniently
divided into two approaches. The first ofthese has been called ‘the deterministic
approach’ which points to the importance209

RESOURCE MATERIAL SERIES No. 57
of factors outside the criminal justicesystem. The second approach emphasises
the impact of policy choices and attitudes
within the criminal justice system.
Deterministic Approaches
Unemployment. Possibly the earliest
attempt to unravel the determinants of theprison population were Rusche andKirchheimer who in 1939 published a bookcalled Punishment and Social Structure.
They argued that labour market forces
shaped the penal system and determined
the number of individuals in custody
independent of the policies and theories ofpunishment. This notion is still currently
pursued by some who have demonstrated
a correlation between the levels of
unemployment and the number
incarcerated. Despite some consistentfindings, high unemployment is notuniversally associated with increasing use
of imprisonment. It has been argued that
economic factors that influence
employment also have an impact onsocietal attitudes that may influence
imprisonment.
Decline in the use of Psychiatric
Hospitals. There are a number of studies
that have reported an inverse relationshipbetween the sentenced prisoner population
size and the psychiatric hospitalisation
rate. In some countries including Australia
there has been a marked tendency towards
deinstitutionalisation of the mentally ill
who it has been argued are better off incommunity care. Unfortunately when thishas failed the patients end up in prison
custody.
Influence of capacity. Advocates ofprison reform have often argued that
incremental increase of prison capacity
results in a corresponding increase in theprison population. This has formed thebasis of arguments against building new
prisons when overcrowding occurs. An

210

American National Institute of Justicestudy in 1980 claimed to show this and has
been much cited in literature as evidenceof such an effect. However in 1982 the data
was re-analysed by Blumstein et al who
found the conclusions to be incorrect. They
also point out that in the USA:
there was considerable spare capacity
in the 1960’s, when crime wasincreasing but prison populations
declined. We also believe that prison
congestion or projected growth inprison population can stimulate
increase in prison capacity to meet
future needs.
Policy Choices and attitudes in the
Criminal Justice System‘Law and Order’ Policy Platforms
Many politicians respond to what they
think the public want and advocate ‘let’s
get tough on crime’ policies. Influenced by
the media, particularly popular television
dramas, the public could be forgiven forthinking they were taking their lives intheir hands as every time they walk down
the street. The news is regularly filled with
speculation about organized child sexual
abuse and high level corruption in thegovernment. Politicians, whether they arein government or waiting to be elected are
more likely to introduce harsher penalties,
increase the levels of policing and remove
discretion from the judicial focus than thereverse. During election campaigns
politicians seek to gain public confidence
and mount campaigns where theyeffectively outbid their opponents in thelaw and order stakes. Once elected,
governments then have a mandate to
introduce new legislation that may resultin increased sentences or even new offence
categories.
Levels and effectiveness of Policing.
The level of Policing has been shown tohave an impact on arrest rates and rate of

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
convictions. This can be independent of thelevels of criminal activity. A good example
is the area of illicit drug use, which incountries like Australia, USA and UK isalmost endemic in certain parts of the
population. If the Police were to target
certain locations then the arrest andconviction rate could be doubled.
Outstanding warrants may not be pursued
if they are a low priority, but if the numberof Police is increased this could create more
opportunity for arrests.
Activity of courts. The level of court
activity can influence the number of people
in custody in a number of ways. The
number of unsentenced people in custodyis largely an outcome of the time it takes
to bring matters to trail and sentencing.
Lengthy court backlogs will result in larger
numbers of people in custody on remand.
Increasing the activity of courts results inshorter remand periods, but may also
increase the number of sentenced
receptions, particularly those on Bail.
Loss of faith in Rehabilitation. There
are few correctional issues that haveattracted as much debate in thecorrectional literature as the possibility ofrehabilitation. Although the ‘nothingworks” slogan attributed to Robert
M a r t i n s o n i n t h e 1 9 7 0 ’s h a s b e e ndisregarded in favour of the view that somethings work, the impact of this loss of faith
in the rehabilitative process continues tohave some impact in some jurisdictions
particularly where it can be used torationalise spending. Faith and lack offaith in rehabilitation can both result inincreases in the prison population
depending on policy implications. The useof remissions and flexible parole
opportunities has been eroded in many
countries in favour of ‘truth in sentencing’legislation that ensures that thoseincarcerated serve a designated minimum
term or even a mandatory term.

Alternatively e.g. the belief that drug
rehabilitation programmes in custody are
effective will ensure that a person isincarcerated in favour of community based
programmes. There are numerous
examples of policies which directly
emphasise or de-emphasise the role ofimprisonment having a corresponding
impact on the size of the inmate population.
There are also examples in the literatureof policies that have failed to have thedesired impact. E.g. there are numerous
examples of alternatives to custodial
sanctions that have failed in that they haveresulted in an increase rather than adecrease in the numbers in custody
through the process of net widening.
Moral Panic. High profile crimes,
particularly unusually violent offences
involving women and children have beenshown to have significant impacts on theprison population. The sense of moral
outrage that follows these events coupledwith the view that the very fabric of society
is being threatened can have both direct
and indirect consequences for the criminal
justice system as a whole. In the United
Kingdom following the murder of a youngboy (Jamie Bulger) by other children, there
was evidence of a shift away from leniency
in sentencing. In Australia the murder of
two young girls in a remote coastal area by
two men one who was on Bail the otherperiodic Detention, resulted in the removalof the presumption in favour of Bail for
certain offences and in the changes to therevocation processes for periodic detainees.
Both of which I will demonstrate later
contributed to the rise in the inmate
population.
Court Sentencing Practices. Whileeach of the factors that have been describedabove may influence the number of people
in custody, it has been shown than it is not
the number of admissions, but changes tothe length of sentence that has the greatest

211

RESOURCE MATERIAL SERIES No. 57
impact on the number of people in custody.
More specifically it is an increase in thenumber of people serving longer sentencesthat will have the greatest effect. Increased
Sentence lengths have become a reality insome countries through the introduction of
mandatory sentencing, truth in sentencing,‘Three strikes and you are in”, sentencing
guidelines etc. These remove judicial
discretion. Prescriptive sentencing rarely
works to reduce sentence lengths.
It usually left to the courts to determine
who will participate in alternatives to fulltime prison sentences. There has been
mixed success with these strategies but a
lot of criticism for net widening despite
carefully constructed legislation
II. NEW SOUTH WALES - A CASE
STUDY
The New South Wales Department ofCorrective Services is responsible for the
management of approximately 7400
offenders in full-time custody, 1300
offenders on periodic detention and 17600
offenders subject to community
supervision. New South Wales is one ofsix states and two territories, who manage
their own criminal populations. There isno federal system and New South Wales,
the state with the highest populationaccounts for close to one third of people
imprisoned in Australia.
The operations and management of the
Department have changed dramatically inthe past 25 years. The introduction of
specialised programmes for inmates,
intensive training for staff, specificmanagement plans for women andaboriginal inmates, and case management,
combined with increased levels of inmate
participation in education and work
programmes, among other things, havealtered the practice of corrections in thisstate.

212

The fundamental tenet that “A person
is sent to prison as punishment and not
for punishment” 2 is reflected in the
Department’s mission to provide safe andhumane conditions for those incarcerated.
This Department plays a crucial role in
the justice system but it does not determine
the number of people sent to prison.
Sentencing trends and the level of judicial
use of alternatives to full-time
imprisonment are issues best addressed by
the judiciary.
III. RECENT TRENDS IN THE NSWPRISON POPULATION
The graph on the following page shows
the daily average number of inmates in
NSW correctional centres (excluding
periodic detainees) in the period fromJanuary 1988 to November 1999. Detailed
data including the breakdown into males
and females is given in Appendix 3. The
graph and associated data show that:• in the four years from January 1988
to January 1992, the prison
population grew rapidly. The male
inmate population rose from 3750 to
5679, a rise of 1929 (51.4%), and thefemale inmate population rose from204 to 331, a rise of 127, (62,3%).
These increases occurred mainly inthe three years following thecommencement of the Sentencing Act
1989 in September 1989. The
Sentencing Act 1989 introduced theprinciple of ‘truth in sentencing’
which removed the capacity forremissions and increased the lengthof time served. It should also be notedthat the strength of the NSW Police
Service increased from 11,236 in 1987
2

Report of the Royal Commission into New South
Wales Prisons, NSW Government Printer, 1978,
pages 49-51. See also recommendations 6 and 7 of
the Nagle Report, on page 463.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
to 12,857 in 1992, an increase of 1621
(14.4%)• in the five years and six months fromJanuary 1992 to June 1997, theprison population continued to riseslowly, bearing in mind the timespan. During this period the male
inmate population rose from 5679 to
6039, a rise of 360 (6.3%), while thefemale inmate population rose from33lto 365, a rise of 34 (10.3%)• in the next nine months, from June
1997 to March 1998, the male inmate
population changed little, while thefemale inmate population fell
substantially. In these nine months,
the male inmate population fell from6039 to 5959, a fall of 80 (1.3%), but
the female inmate population fell
from 365 to 294, a fall of 71 (19.5%).
The reasons for this substantial fallin the female inmate population are
not known• in the two years from, from March
1998 to March 2000, the prison
population grew rapidly. The male
inmate population rose from 5959 to
7,000, a rise of 1,041 (17,5%), and thefemale inmate population rose from
294 to 452, a rise of 148 (50%). Thishigh figure is partially explained,
because the starting point, March
1998, recorded such a low female
inmate population.

Populatoin of inmates in full time custody

8000
7000
6000
5000
4000
3000 Jan
1988

Jan
1989

Jan
1990

Jan
1991

Jan
1992

Jan
1993

Comparisons with other Australian
Jurisdictions
The recent growth in the New South
Wales prison population can be compared
to trends in prison populations throughout
Australia and the rest of the world subject
to the qualifications I have alreadymentioned.
The rate of imprisonment in New South
Wales increased from 133.1 to 152 per

Jan
1994

Jan
1995

Jan
1996

Jan
1997

Jan
1998

Jan
1999

Jan
2000

100,000 adults, a rise of 14.2%, between
the beginning of 1995 and the third quarterof 1999 (Australian Bureau of Statistics
figures published in December 1999). The
increase in the rate of imprisonment in
New South Wales was exceeded by rises inother Australian jurisdictions during thisperiod. The imprisonment rate in
Queensland increased from 109.6 to 191.3
per 100,000 adults, a rise of 75%. The
imprisonment rate in Western Australia

213

RESOURCE MATERIAL SERIES No. 57
increased from 158.9 to 216.2 per 100,000
adults, a rise of 36%. The imprisonment
rate in Victoria, which traditionally has
had a comparatively low imprisonment
rate, increased from 69.8 to 83.5 per
100,000 adults, a rise of 19.6%. South
Australia reported the lowest increase in
the rate of imprisonment of any Australianjurisdiction. In South Australia the raterose from 118.6 to 120.6 per 100,000 adults,
a rise of 1.7%.
The ratio of women inmates per 100,000
population in New South Wales was 13.5
in 1998, the rate had been 17.4 in 1992. In
1998 women were imprisoned in this Stateat a lower rate than in Queensland (20.5),
Western Australia (23.4), Northern
Territory (45.9), and South Australia (14).
The Australian Capital Territory reported
a female imprisonment rate of 5.1 per
100,000 population which was the lowest
rate of any Australian jurisdiction The
national average in 1998 was 14.4.
The United Kingdom (UK) reported anincrease in its rate of imprisonment from96 to 125 per 100,000 adults, a rise of 30%,
between 1994 and 1998. During the period
1987 to 1997, the average female prison
population in the UK rose by 51%. This
rise was substantially higher than the 24%
rise in the male population during the same
period. The UK recorded an 18% rise in
its average female prison population from1996 to 1997 compared with a 10% rise inits male population.
The United States of America (US)reported an increase in its rate of
imprisonment from 403 to 645 per 100,000
adults, a rise of 60%, between 1995 and1998. The number of men and women in
US state and federal prisons rose by 4.7%
and 6.5% respectively in 1998. This was
the third consecutive year in which theincrease in the female prison population
exceeded the increase in the male214

population. In the US, during the period
1990 to 1998, the number of female
prisoners grew by 92% compared with agrowth of 62% in the number of maleprisoners.
The Netherlands, which in the past has
had a relatively low imprisonment rate, has
not been immune to the worldwide trendof increasing imprisonment rates. The
Netherlands recorded an imprisonment
rate of 51 per 100,000 population in 1993.
The imprisonment rate rose to 75 per
100,000 in 1997 and to 85 per 100,000 in
1998.
IV. DYNAMIC PROCESSESUNDERLYING THE RECENT RISE
IN THE NSW PRISON POPULATIONAs reported above, the dramatic increaseof over 50% in the NSW inmate population
between 1988 and 1992, can be attributed
to the introduction of the Sentencing Act
1989. This legislation introduced theprinciple of ‘truth in sentencing’ whichremoved the capacity for remissions andincreased the length of time served. The
population stabilised in 1992 by which timeit has been argued Judges compensated forthe impact of the legislation in some cases
imposing shorter sentences. Truth insentencing legislation was adopted
following a scandalous episode in thecriminal justice history of NSW where aGovernment Minister, in collusion withothers was found to be taking bribes toensure the early release of criminals. The
Minster himself ended up in custody.
The next period of rapid expansion which
occurred in the period from 1997 to thepresent is not so easy to explain. In thenext section of this paper I will workthrough the component changes in theinmate population with a view todetermining what may have brought about
this increase.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Immediate causes of a rise in a
prison population
The actual number of people imprisoned
at any point time depends on four factors:
1. The number of persons received onremand
2. The length of time they stay on remand
3. The number of persons starting asentence of imprisonment
4. The length of time they serve.
Data from NSW for the period from 1997
to 1999 corresponding to each of thesefactors is presented below.
Factor 1. The number received onremandTable 1 (below) shows unsentenced
receptions for the past three financial years
Table 1
Unsentenced Receptions
1996-97 1997-98 1998-99
Male receptions
7083
7252
8571
Female receptions
714
788
1080
This table shows that the number of
unsentenced receptions grew somewhat
between 1996-97 and 1997-98, but that the
number jumped substantially between
1997-98 and 1998-99, especially the
number of female receptions,
A high number of inmates on remandplaces intense demand on Departmental
resources and staff. A high number ofremandees means a high number of inmate
movements3, both to and from court andbetween correctional centres. It also meansthat there are more inmates on protection
3

In 1996-97 the Department made 100,462 inmates
movements; in 1997-98 the figure was 111,636; andin 1998-99 the figure was 127,318 inmate
movements. Source: NSW Department ofCorrective Services, 1998/99Annual Report,
page12and more inmates who are unable toassociate with other nominated inmates in
the correctional systems. The higher thenumber of these inmates, the greater thechallenges in terms of placing inmates insuitable accommodation.
Remandees are, generally speaking,much more unsettled than convicted
inmates who largely accept their situationand try to adapt to prison life.
Factor 2. Length of time spent on
remandTables 2 and 3 (below) show unsentenced
male and female receptions over the past
three financial years, divided into those
who spent 30 days or fewer on remand andthose who spent more than 30 days on
remand4:
Table 2
Unsentenced male receptions shownby time spent on remandTime on remand 1996-97 1997-98 1998-99
30 days or fewer 4970
5066
5810
More than 30 days 2113
2186
2761
Total
7083
7252
8571
Table 3
Unsentenced female receptions
shown by time spent on remandTime on remand 1996-97 1997-98 1998-99
30 days or fewer
553
618
829
More than 30 days 161
170
251
Total
714
788
1080
It can been seen from Table 2 that the
number of unsentenced male receptions
grew somewhat between 1996-97 and 199798, but that the number jumped
substantially between 1997-98 and 199899, both for short-term and long-term
4

NSW Department of Corrective Services, Research& Statistics Unit

215

RESOURCE MATERIAL SERIES No. 57
remandees. Table 3 shows that the numberof unsentenced female receptions grew
somewhat between 1996-97 and 1997-98,
but that the number jumped substantiallybetween 1997-98 and 1998-99, especiallythe number of female inmates spending
fewer than 30 days on remand. One
conclusion which can be reached from
Tables1, 2 and 3 is that the length of timespent by inmates on remand has been asignificant driving force behind the rise in

the prison population.
Factor 3. The number of Sentenced
receptions
Table 4 (below) shows the most serious
offence category for male and female
sentenced receptions for the past two
financial years5:
It can be seen from Table 4 that theincrease in the number of male receptions
between 1997-98 and 1998-99 occurred

Table 4
Male and female sentenced receptions during 1997-98 and 1998-99
Most serious offence category
Homicide
Assaults
Sexual offences
Robbery
Fraud
Property
Dangerous driving
Driving under the influence
Driving without a license
Breach of parole
Cancelled periodic detention order
Breach of home detention order
Breach of Drug Court order
Breach of recognizance (bond)Breach of community service order
Breach of apprehended violence order
Other offences against order
Use/possession of illegal drugs
Selling illegal drugs
Importing illegal drugs
Making/cultivating illegal drugs
Other offences
Total

Male Receptions
1997-98
1998-99
46
55
1052
1166
268
241
386
473
214
231
1728
2059
78
98
212
231
176
270
388
542
354
466
21
48
0
13
88
85
114
86
120
118
126
122
41
64
269
281
57
52
28
23
90
77
5856
6801

5

216

Female Receptions
1997-98
1998-99
5
10
77
73
1
1
27
45
44
60
217
229
6
10
9
5
1
14
39
47
29
35
3
10
0
4
10
11
10
11
4
3
11
17
6
9
34
35
11
11
2
1
8
5
554
646

NSW Department of Corrective Services, Research& Statistics Unit

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
mainly in the following categories: property
offences (331); breach of parole (154);
assaults (114); cancellation of periodic
detention orders (112); driving without alicence (94); and robbery (87).
The increase in the number of female
receptions between 1997-98 and 1998-99
occurred mainly in the following categories:
robbery (18); fraud (16); driving without alicence (13); and property (12).

It should be emphasised that Table 4shows the flow of male sentenced receptions.
It is not a “snapshot” at a particular date.
“Snapshots” of the number of male andfemale sentenced inmates in custody, as at
30 June 1998 and 30 June 1999 sorted on
the basis of their most serious offence
category, are shown in Table 5.

Table 5
Male and female sentenced inmates as at 30 June 1998 and 30 June 1999
Male Receptions
Most serious offence category
Homicide
Assaults
Sexual offences
Robbery
Fraud
Property
Dangerous driving
Driving under the influence
Driving without a licence
Breach of parole
Cancelled periodic detention order
Breach of home detention order
Breach of Drug Court order
Breach of recognizance (bond)Breach of community service order
Breach of apprehended violence order
Other offences against order
Use/possession of illegal drugs
Selling illegal drugs
Importing illegal drugs
Making/cultivating illegal drugs
Other offences
Total

30 June
1998
440
633
640
791
165
1087
68
93
50
259
136
9
N/A
28
28
21
59
27
316
186
38
61
5135

30 June
1999
460
641
619
876
174
1155
95
100
101
352
228
16
1
34
29
21
59
26
324
208
35
56
5608

Female Receptions
30 June
1998
26
30
3
32
34
68
5
23
10
1
N/A
3
4
7
5
20
11
2
1
285

30 June
1999
29
37
3
37
37
76
9
1
3
29
15
4
1
3
4
2
7
2
25
14
2
340

217

RESOURCE MATERIAL SERIES No. 57
Factor 4 Length of time served
Table 6 (below) shows the length of time
served/to be served by male sentenced
inmate receptions for the past threefinancial years6:

Table 7 (below) shows the length of time
served/to be served by female sentenced
receptions for the past three financial
years7:

Table 6Time served/to be served* by male sentenced receptions
Time served

1996-97

1997-98

1998-99

0-3 months
3-6 months
6-12 months
1-2 years
2+ years
Total

1962
1317
1224
606
454
5563

2094
1428
1232
601
501
5856

2565
1708
1317
635
576
6801

*

Increase between
96-97 and 98-99
603
391
93
29
122
1238

time served/to be served = sentenced reception date to end of fixed or minimum
term
Table 7
Time served/to be served* by female sentenced receptions
Time served

1996-97

1997-98

1998-99

0-3 months
3-6 months
6-12 months
1-2 years
2+ years
Total

236
134
71
33
25
499

293
122
79
35
25
554

333
158
87
33
35
646

*

time served/to be served = sentenced reception date to end of fixed or minimum
term

Many inmates are in prison for long
periods of time, indicative of theseriousness of their crimes. As at 30 June
1999 there were 5594 male sentenced
inmates. Of this number, 3208 (57.3%)
were serving sentences of two years or
more. As at June 1999 there were 340
female sentenced inmates. Of this number,
6

NSW Department of Corrective Services, Research& Statistics Unit
7 NSW Department of Corrective Services, Research& Statistics Unit

218

Increase between
96-97 and 98-99
97
24
16
0
10
147

140 (41.2%) were serving sentences of two
years or more8.
What is influencing these factors?
Increases and decreases in the above
factors may be the direct and indirect resultof changes in:
5. Crime rate
6. Police activity
7. Court activity/outcomes8

NSW Department of Corrective Services, Research& Statistics Unit

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
8. Breach of orders.
Crime Rate
Overall the crime rate in NSW during
the period from 1997 to 1999 did notincrease. The NSW Bureau of Crime
Statistics and Research in 1999 issued amedia release stating:
For the first time in more than adecade NSW has no rising crime
problem.
...Between July 1997 and June 1999
there were falls in sexual assault(down 17per cent), indecent assault
and related offences (down 20per
cent), robbery with a firearm (down29per cent), and motor vehicle theft(down 14per cent).

The Local Court in New South Wales
deals with the vast majority of criminal
charges laid by police.
According to the report there have been
increases in appearances for offences in the
categories of: good order (+12.3%),
environmental (+11.0%), against justiceprocedures (+9.8%), drug (+8.6%), driving(+5.7%), and theft (+4.7%).
There was a particularly large
increase (+32.6%) in the number of
appearances for “other offences
against good order”. This was mainly
due to new provisions in the Summary
Offences Act which prohibit thecarrying of knives10.

During the same period however, thenumber of Murders increased by 7% (from112 to 121), common assault increased by
6%, fraud increased by 8%.

The Police Service has reported thatarrest figures increased in 1998-99 by thefollowing percentages, compared with theprevious year:
Breaching bail conditions+33%
Goods in custody+15%
Drink driving offences+22%
Driving while disqualified+48%
Possession/use of cocaine+48%
Possession/use of narcotics+32%
Possession/use of cannabis+ 8%11.

Police activity
On 24 September 1999 the NSW Bureauof Crime Statistics and Research publishedthe New South Wales Criminal Courts
Statistics 1998. When doing so, the Bureau
issued a media release stating:

The Police Service also reported that the
proportion of police in the front line had
increased as follows since 1996:
1996
74% of police “in front line”
1997
83%
1998
85%12.

There have been significant increases
in the number of people brought before
the Local Court on criminal charges,
according to the annual court
statistics report of the NSW Bureauof Crime Statistics and Research.

10 NSW Bureau of Crime Statistics and Research,

Perhaps not surprisingly, measures oflaw enforcement activity are
significantly higher now than they
were two years ago.99

NSW Bureau of Crime Statistics and Research,
NSW Recorded Crime Statistics: Quarterly Update
June 1999 Media Release, 6 August 1999

Media Release: NSW Criminal Courts Statistics
1998, 24 September 1999
11 NSW Police Service, 1998-99Annual Report,
page 13
12 NSW Police Service, 1998-99Annual Report,
page 4219

RESOURCE MATERIAL SERIES No. 57
Court activity/outcomes
Variations in the level of resources
allocated to criminal matters by the courts,
in any given year, are likely to have a direct
impact on the inmate population. The
Report Key Trends in crime and Justice199913 shows that between 1995 and 1999
there was an increase in the number ofcases brought before the Local Court andan increase of 24.3 % in the percentage ofindividuals refused bail by the local courts.
In the District Court Bail refusals were up
10.6 % in the period from 1997-1999 but
the number of new cases registered went
down by 11.4%. On 12 December 1998 theBail Amendment Act 1998 commenced.
This Act increased the number of offences
for which there is no presumption of bail.
In its media release of 24 September
1999, referred to previously, the Bureau of
Crime Statistics and Research alsocommented:
The use of imprisonment ... appears
to have increased in the Local Court.
In 1997, 5,881 people (6.4per cent of
those found guilty) were sentenced toa term of imprisonment by a Local
Court. In 1998, the number of people
given a sentence of imprisonment by
a Local Court rose by 12. 4per cent, to6, 612 people (or 7.0 per cent of thosefound guilty).
The number of persons brought before
the NSW Higher Criminal Courts did
not increase between 1997 and 1998.
However, the use of imprisonment did
increase.
In 1997, 1,588 people (61.9 per centof those convicted) had a sentence ofimprisonment imposed on them by theDistrict or Supreme Court. In 1998,
this figure rose by about 9 per cent, to
1,736 people (or 63.1 per cent ofconvicted offenders).14
The Report Key Trends in crime andJustice 199915 shows that between 1997
and 1999 the number of persons sentenced
to imprisonment for cases finalised in the
Local Courts had increased by 19.8%(5,841-6,995), and that the average lengthof sentence imposed by the Local Court on
women had increased by 13.9% during thesame period. (There was no significant
change in sentence length for men in thelocal court during this period.). In theDistrict Court the number of new cases
decreased by 11.4% from 1997-1999, but
the number of women found guilty who
received a prison sentence was up by
36.2%.
A recent publication by the Bureau of
Crime Statistics and Research, whichanalysed the recent rapid rise in the female
prison population in NSW, concluded:
In the Local Court:• There has been a substantial
increase in the overall number ofwomen convicted in the NSW
Local Court.
• In addition to the increased
number of women found guilty, theproportion receiving prison terms
has also increased. This isprobably due to convictions foroffences against the person andagainst justice procedures
accounting for a greater proportionof offenders, as well as theincreased popularity of prison as
14 NSW Bureau of Crime Statistics and Research,

13 NSW Bureau of Crime Statistics and Research, Key

Trends in Crime and Justice 1999, June 1999

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Media Release: NSW Criminal Courts Statistics
1998, 24 September 1999

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
a penalty for some offences dealt
with in Local Courts.
• Sentence length has also risen
slightly.
In the Higher Courts:• The overall number of women sent
to prison from the Higher Courts
has increased over the past five
years, despite the number ofconvictions dropping by 31.5 per
cent,• The increase in women sent toprison may be due to the numberof convictions for robbery (forwhich prison is a common penalty)
nearly doubling over the past five
years.
• In addition, the proportion of
female offenders receiving prison
terms for robbery property crimes,
and drug offences has increased
over the past five years.
Therefore, the increase in female
imprisonment [from “early 1998”] islikely to be due to both harsher
penalties handed down by the courts,
and a shift in the types of offences
being committed by women towards
those more likely to receive prison
penalties. The growth in the numberof women appearing in court foroffences such as robbery may berelated to the general growth in heroin
use among women.16

A factor which may start to affect therise in the inmate population is thehanding down by the Court of Criminal
Appeal of Guideline Judgments.
In 1999 the Court of Criminal Appeal
handed down four Guideline Judgments.
In R v Jurisic, Spigelman CJ said:
As in England, it appears that trial
judges in New South Wales have notreflected in their sentences theseriousness with which society
regards the offence of occasioning
death or serious injury by dangerous
driving.17
In R v Henry Barber Tran Silver
Tsoukatos Kyroglou Jenkins, Spigelman CJ
said, after reviewing sentencing statistics
relating to armed robbery:
These statistics strongly suggest bothinconsistency in sentencing practiceand systematic excessive leniency inthe level of sentences. They justify
the promulgation of a guideline
judgment.18
On the other hand in R v Wong & Leung
Spigelman CJ said, after reviewing
sentencing patterns relating to heroin andcocaine offences:
In such circumstances theconsiderations relating toinconsistency arid to systematic
inadequacy of sentences to whichreference is made in Jurisic andHenry...do not arise.19

15 NSW Bureau of Crime Statistics and Research, Key

Trends in Crime and Justice 1999, June 1999

17 R v Jurisic (1999) 101 A Crim R 259 at 269

16 Fitzgerald, Jacqueline: Women in Prison: the18 R v Henry Barber Tran Silver Shoukatos Kyroglou

Criminal Court Perspective, Crime and Justice
Statistics Bureau Brief, Issue Paper No.4, NSW
Bureau of Crime and Statistics Research, December
1999

Jenkins (currently unreported) [1999] NSWCCA
111, at paragraph 110
19 R v Wong & Leung (currently unreported) [1999]
NSWCCA 420 at paragraph 113

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RESOURCE MATERIAL SERIES No. 57
Similarly in In the matter of the AttorneyGeneral’s Application (No.1) Grove J said,
after reviewing sentencing patterns
relating to break, enter and steal:
I am unpersuaded that the material
to which the Court has been referredleads to a conclusion that there has
been shown to be a general patternof leniency...20.
Breach of orders
If a periodic detainee, home detainee, orparolee breaches his/her order, the court
or Parole Board (as the case may be) islikely to revoke the order and issue awarrant for the apprehension of theoffender and his/her return to prison. If aperson serving a community service order
or a person under a bond breaches theconditions of the order or bond, the court
may sentence the offender to
imprisonment.
On 1 February 1999 amendments to the
Periodic Detention of Prisoners Act 1981
commenced. These amendments shiftedfrom the courts to the Parole Board thefunction of cancelling periodic detention
orders (if a periodic detainee fails to comply
with the requirements of periodic
detention, the detainee is liable to have his/her periodic detention order cancelled).
Under the previous system, cancellation
procedures were taking many months forlisting and determination.
There was an increase in the number ofcancellations of periodic detention orders
in 1999. The Parole Board made initialdeterminations to cancel 1126 orders in the
12 months from 1 February 1999. The
courts cancelled 424 orders in 1997-98. The
Board later reviewed its decisions to cancel
20 In the matter of the Attorney-General’s Application(No. 1) (currently unreported) [1999] NSWCCA 435
at paragraph 28

222

588 of these orders, as required by law. Of
the cases reviewed, the decision to cancel
the order was rescinded on 125 occasions
and cancellation was confirmed in the other463 cases. Of the cases in whichcancellation was confirmed, on 25 occasions
the remainder of an offender’s sentence wasconverted to an order for home detention.
In 1999, the Parole Board revoked thehome detention orders of 86 offenders
which was 17 more than in the previous
year.
In 1999, the Parole Board revoked theparole of 1159 offenders which was 223
more than in the previous year.
What does the NSW Case Study Showus?
• The number of persons received onremand has increased significantly
between 1997 and 1999. This may due
to the combined impact of the increasein the number being refused Bail andthe increase in Police activity, but it is
not linked to an increase in criminal
activity.
• the length of time spent on Remand has
increased significantly• the number of sentenced inmates
received in custody increased during
the same period. Major increases wereseen in the numbers serving sentences
for property offences, breach of Parole,assaults and cancellation of periodic
detention orders. These categories ofoffences are unlikely to have attracted
lengthy sentences.
• the number of people serving sentences
greater than two years increased by
26% in the period from 1997-1999 and
30% for those sentenced to less than 3months.
• the number of people who had theirparole order, home detention order or
periodic detention order revokedincreased.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Each of the above factors has contributed
to the increased inmate population. Given
that there has been no demonstrated
equivalent increase in criminal activity, theissues that are most likely to haveinfluenced this include:
•
•
•
•
•

increased levels of Policing
removal of the presumption in favourof Bail
reduced tolerance of Parole violations
reduced tolerance of periodic detention
order violations(net widening)
increase in the length of additionalterm served by inmates

In a recent article on Australia’s Risingprison Population21, Arie Frieberg points
to a more subtle force at work.
There is no one single factor...
responsible for the steady but
significant increase in Australianprison numbers. Although the levelof crime differs between states as does
the mix of offenses, there is no evidence
of increases concomitant to theincreases in the prison populations.
... rather the explanation is to be foundin the courts’ reaction to legislative
signals and calls for “tougher”
penalties and sentences.
Frieberg includes among these signals
increased statutory maximum
penalties; statutory changes in theaims of sentencing to favour
incapacitative sentences; introducing
indefinite sentences, mandatory andminimum sentences; requiring
cumulative rather than concurrent
sentences; and emphasising the rights
and interests of victims of crime in thesentencing process.
21 Frieberg, Arie Understanding Rising Prison

Populations In Australia, Overcrowded Times,
October 1999.

V. DEALING WITH
OVERCROWDING
As I indicated at the outset, developing
an understanding of the causes of theincreasing prison population is a necessary
precursor to developing strategies to deal
with it. This includes developing models
to predict future trends.
It is not required however for Capital
Wo r k s s o l u t i o n s t h a t i n c l u d e t h econstruction of new facilities, the adaptive
reuse of old building stock and the
expansion of existing facilities are a logicalsolution, but may be beyond the means of
the government or correctional authority.
In NSW currently, construction and orplanning is underway for three newcorrectional centres catering for men andwomen. This has become controversial andsubject to a review by Parliament spurred
on by groups who believe that building
more gaols is an unacceptable solution.
I do not intend to explore the capital
works solutions in this paper (as they are
obvious) other than to mention that there
is a body of literature about correctional
centre design that promotes innovativebuilding technologies. Among the morecurious solutions to the shortage ofaccommodation is a Western Australia
example where steel shipping containers
have been converted to temporary inmate
accommodation. In western NSW a remoterural town that had been abandoned by therailways has been purchased as acorrectional centre and base for mobile
prison camps that operate in nationalparks in the region.
Reducing The Number of People in
Full Time Custody
Reducing the number of people incustody is I believe is a better objective,
though often harder to achieve. There arethree groups of options for achieving this.

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RESOURCE MATERIAL SERIES No. 57
1. Reversing those processes that havebeen found to have a causal impact(from the NSW case study for example
this could include for example reducing
P o l i c e a c t i v i t y, r e s t o r i n g t h epresumption in favour of Bail andreducing court delays. Only the last ofthese would be an acceptable option.)
2. Developing alternatives to full timecustody eg Home Detention
3. Adopting decarceration policies eg
decriminalization
Alternatives to imprisonment
In NSW imprisonment is intended to bea last resort. The imposition of Section
80AB of the Justices Act 1902 states that“a Justice or Justices shall not sentence a
person to full-time imprisonment unlesssatisfied, having considered all possible
alternatives, that no other course isappropriate”. This was reinforced under
Section 5 of Crimes (Sentencing Procedure)Act 1999 which states that “a court must
not sentence an offender to imprisonment
unless it is satisfied, having considered all
possible alternatives, that no penalty otherthan imprisonment is appropriate”.
In New South Wales, the following are
regarded alternatives to full-time
imprisonment22.
• fines• probation in its various forms (orderunder section 556A of the Crimes Act
1900; order under section 558 of the
Crimes Act 1900; order under section
432 of the Crimes Act 1900; order under
section 554 of the Crimes Act 1900;
common law bonds, including the“Griffiths bond”)• community service orders• periodic detention orders• home detention orders• Drug Court orders• Suspended Sentences

224

The Probation and Parole Service, whichis part of the Department of Corrective
Services, is responsible for managing
offenders in the community. The caseloadof the Probation and Parole Service has
increased in recent times, in particular,
there was a 14% increase in the number ofsupervised probation orders made by the
courts in the period December 1997 to
December 1998. The number of theseorders increased by a further 5% between
December 1998 and December 1999. The
Probation and Parole Service also assists
judges and magistrates to make sentencing
decisions by providing them with presentence reports.
Pre-sentence reports
Pre-sentence reports are not alternatives
to imprisonment. It is appropriate,however, to mention them here as presentence reports play an important role inassisting a court to decide whether toimpose a custodial sentence or a noncustodial sentence.
Judges and magistrates frequently
require information about an offender toassist them in determining an appropriate
sentence. Offenders are remanded, eitherin custody or on bail while a probation andparole officer prepares a report. The reportprovides verified information regarding theoffender’s circumstances, an assessment of
the offending behaviour, and any additional
22 Except for Drug Court orders, the alternatives listed

have been taken from the report of the New South
Wales Law Reform Commission on sentencing(Report No. 79, December 1996). The Drug Court
commenced in February 1999. The Drug Court isable to make an initial sentence to the effect that
an offender go to a correctional centre fordetoxification and then attend a community-based
program. If the offender fails to comply with theterms of the initial sentence, the court may set aside
its initial sentence and make a final sentence which
may mean imprisonment.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
information relevant to sentencing. The
report also includes an assessment of an
offender’s suitability for periodic detention
and a range of community-based
sentencing options such as community
service work, an attendance centre order,
supervised probation, ability to comply
with a monetary penalty, and any otherspecified programmes consideredappropriate. A proportion of the offenders
on whom a pre-sentence report is preparedinevitably will receive a full-time custodial
sentence due to factors such as theseriousness of their crime and theircriminal antecedents.
The Probation and Parole Service
provided 17,931 pre-sentence reports to thecourts in 1995-96. In 1996-97, 18,624
reports were provided and 20,167 were
provided in 1997-98. In 1998-99, 22,832
pre-sentence reports were prepared which
was 4,901 more than four years previously.
An example of a pre-sentence report isprovided in Appendix 16.
Fines
Courts have imposed fines as analternative to imprisonment for hundredsof years. The Fines Act 1996, which
commenced on 27 January 1998,
introduced a fine enforcement system
which is based on a hierarchy of civil andnon-custodial sanctions for the nonpayment of fines with imprisonment beinga sanction of last resort. Under the system,a court will only issue a warrant ofcommitment if a fine defaulter fails tocomply with the conditions of a community
service order. The Fines Act 1996 does not
apply to fines/warrants issued by the
Commonwealth or other States or
Territories.
The Fines Act 1996 has diverted all NSW
fine defaulters from prison (there areusually about three interstate finedefaulters in the NSW correctional system

at any one time). Prior to thecommencement of this Act, a significant
number of fine defaulters entered thecorrectional system. In 1995-96 and 199697, for example, 3,936 and 4,474 finedefaulters respectively entered thecorrectional system. It should be noted thateventually some persons will enter thecorrectional system because they have notcompleted community service orders madeunder the Fines Act 1996.
Probation orders
The various probation orders under the
Crimes Act 1900 have been with us formany decades; the notes to the Crimes Act
1900, contained at the end of the Act, state,for example, that section 556A was inserted
into the Act in 1924. The “Griffiths bond”,
under which an offender may be released“to allow the court to assess their behaviour
and capacity for rehabilitation before
imposing an appropriate sentence” 23,
derives from the case of Griffiths v The
Queen (1977) 137 CLR 293.
An offender may be placed on probation
supervision as a condition of entering intoa recognizance (bond) to be of good
behaviour. Probation is a sentence which
combines sanctions for re-offending, or
failing to comply with the conditions of therecognizance, with case management. The
probationer is given assistance to develop
goals and skills which are directed towarda law-abiding lifestyle through attendance
at programmes organized by the Probation
and Parole Service. The programmes arelisted at Appendix 15.
In 1998-99, 8,394 offenders were placedon probation supervision which was 1,090
more than in the previous year. Eightyseven percent (12,067) of the probation andparole orders completed in 1998-99 were
23 NSW Law Reform Commission, Sentencing, Report

No. 79, December 1996, page 83

225

RESOURCE MATERIAL SERIES No. 57
completed successfully. In December 1999,
1,889 women were subject to probation
supervision which was 8% more than in
December 1997.
Community service orders
Community service was introduced in1979 as an alternative to imprisonment.
When the then Minister for Corrective
Services, Bill Haigh, introduced theCommunity Services Bill, he said on two
occasions during the second reading speechthat “this sentencing measure should
operate as an alternative to
imprisonment”24.
The NSW Law Reform Commission, in
its discussion paper on sentencing, noted
research carried out by the Judicial
Commission which showed that it was
doubtful that community service orders
have always been used solely as analternative to imprisonment 25 . The
Department considers that the original
purpose of community service - as analternative to imprisonment - has, in manycases, disappeared. Nevertheless,community service orders are a valuable
and often used sentencing option whichenables offenders to develop work skills
and make constructive use of their time.
A community service order can be
imposed with an offender’s consent. Judges
and magistrates may sentence suitably
assessed offenders to perform community
work to a maximum of 500 hours. Under
24 NewSouth Wales, Parliamentary Debates(Hansard), Legislative Assembly, 29 November
1979, page 4258
25 NSW Law Reform Commission, Sentencing,
Discussion Paper No. 33, April 1996, pages 337338, referring to Bray R & Chan, J, Community
Service Orders and Periodic Detention as
Sentencing Options: A Survey of Judicial Officers
in New South Wales. Judicial Commission of NSW,
Monograph Series No.3, April 1991

226

the scheme, offenders perform unpaid workat non-profit agencies. Community service
orders are available across the state. As
at 30 June 1999 there were 5,345 offenders
supervised under community service
orders which was 373 more than at thesame time in the previous year. Eightytwo percent (7,901) of the community
service orders completed in 1998-99 werecompleted successfully. The increase inboth probation orders and community
service orders indicates that sentencing
authorities have not forsaken these options
in favour of custodial sentences.
Periodic detention orders
Periodic detention was introduced in1971 as an alternative to full-time
imprisonment. When the then Minister for
Justice, John Maddison, introduced the
Periodic Detention of Prisoners Bill, he said:
Under the proposed legislation courts
will...be able to sentence an offender
to a term of imprisonment for not lessthan three months or more thantwelve months in the ordinary way
but may order that the sentence beserved as a sentence of periodic
detention26.
In 1998 the Judicial Commission of New
South Wales published a monograph on
periodic detention. The monographdiscussed at some length whether the
introduction of periodic detention had led
to net-widening; that is, whether courts,
had imposed periodic detention in cases
where, but for the existence of periodic
detention, the offender would have received
a non-custodial sanction. The Commission
concluded that net-widening had occurred,and stated:

26

New South Wales, Parliamentary Debates(Hansard), Legislative Assembly, 18 November
1970, page 8041

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
A root cause of net-widening appears
to lie in the perception of the courtsthat periodic detention is a lenient
disposition and not “equivalent” tofull time imprisonment.... The
legislature clearly envisages a link
between full time custody and theimposition of a term of periodic
detention.
The amendments to the periodic
detention legislation that commenced
operation on 1 February 1999 strengthened
the criteria against which those facing
sentence are assessed for suitability forperiodic detention. The amendments
removed any doubt as to the requirementthat a court must sentence a person to
imprisonment before considering whether
to make an order for periodic detention.
Periodic detention is available foroffenders who live within a reasonabledistance of a periodic detention centre.
Courts are provided with pre-sentence
reports by the Probation and Parole Service
which contain relevant information about
offenders in relation to matters such as:
alcohol and other drugs; psychiatric or
psychological conditions; criminal record,
employment and other personal
circumstances. When making a decision
about periodic detention, the courts also
take into consideration an offender ’s
accommodation arrangements and accessto suitable transport. As mentioned earlier
in this paper, amendments to the Periodic
Detention of Prisoners Act 1981 haveresulted in an increase in the number ofcancellations of periodic detention orders.
There are currently 1,302 offenders withcurrent periodic detention orders.
Home detention orders
Home detention was introduced in 1997
as an alternative to full-time
imprisonment. The object of the Home
Detention Act 1996, as stated at thecommencement of the Act, is:An Act to provide for home detention
as a means of serving a sentence ofimprisonment in certain cases.
In order to preserve home detention as
an alternative to imprisonment, and thus
avoid net-widening, section 11 of the Home
Detention Act 1996 requires that a court
must first sentence an offender to
imprisonment before calling for anassessment report from the Probation and
Parole Service as to the offender ’s
suitability for home detention. A review of
the Home Detention Act 1996 concluded
that:
The HD Act was successful in limiting
the potential for systematic netwidening within the criminal justicesystem by allowing access to a homedetention assessment only after an
offender had been convicted of
criminal charges and sentenced 27.
In 1998-99, 350 offenders were admitted
to the home detention program. Of these,
83% were men and 17% were women.
Seventy-eight percent (258) of homedetention orders completed during 199899 were completed successfully. The Weekly
States for 16 January 2000 shows that, asat that date, there were 141 offenders onhome detention orders. As home detention
is truly an alternative to imprisonment, on
16 January 2000 there were 141 offenders
serving a sentence outside a correctional
centre who, prior to the commencement of
the home detention scheme in February
1997, would have been serving a sentence
inside a correctional centre.

27 Heggie, Kyleigh.

Review of the NSW Home
Detention Scheme, Research Publication No.41.
NSW Department of Corrective Services, May 1999,
pages vii-viii.

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RESOURCE MATERIAL SERIES No. 57
Drug Court
The Drug Court is a special court withthe responsibility for handling offences
committed by people who are dependent on
prohibited drugs. The Drug Court helps adrug dependent offender to deal with hisor her drug dependency by combining
medical treatment services withcomprehensive and intensive supervisionby the Probation and Parole Service.
To be eligible to be referred to the Drug
Court an offender must, among otherthings, be likely to be sentenced to
imprisonment for the offence with which
the offender has been charged. If the Drug
Court decides that an offender is eligible
for the program and the offender is willingto obey the conditions of the court, the court
will ask the offender to enter a plea of guilty
to the offence. The Drug Court will thenconvict the offender for the offence. The
sentence will then be suspended while theoffender satisfactorily participates in the
program. The sentence is reviewed when
the Drug Court program ends.
The Drug Court was opened in February
1999. As of 3 February 2000, the Drug
Court had made 226 orders. Of these, 189
were in relation to men and 36 in relation
to women. There were 121 active
participants in the program as of this date.
The Drug Court program is a trial programand is limited to 300 participants.
Suspended sentences
Suspended sentences have not been asentencing option in NSW since 1974 when
they were abolished. The Crimes(Sentencing Procedure) Act 1999, reintroduced suspended sentences. Undersection 12 of the Act, a court that imposesa sentence of imprisonment on an offender
for a term of not more than two years may
make an order suspending execution of thesentence and directing that the offender bereleased from custody on condition that the228

offender enters into a good behaviour bondfor a term not exceeding the term of thesentence.
Under section 99 of the Act, if a court
revokes the bond for breach of theconditions, the order under section 12
suspending the sentence ceases to haveeffect and the offender must serve thewhole of the original sentence in prison.
The court may, however, make an orderdirecting that the sentence ofimprisonment to which the bond related(disregarding any part that may havealready been served) be served by way of
periodic detention or home detention.
It remains to be seen whether suspended
sentences will truly divert offenders fromprison, as has been the case with othersentencing options, if offenders persistently
breach the conditions imposed. If thebreach rate is high, suspended sentences
may deliver offenders to prison rather thandivert offenders from prison.
NSW has implemented a range ofalternative programmes some of whichhave clearly diverted people from prison.
The major risk with all “alternative
sentencing options” is that sentencing
authorities may impose those penalties on
offenders who would not otherwise havebeen given a custodial sentence. While thesame, or similar, number of offenders may
be sentenced to prison, a wider circle oflesser offenders are brought within the“net” of the alternative penalties. When aproportion of those offenders breach theterms of their orders, they run the risk offull-time imprisonment. Despite measurestaken to stop this from happening there isevidence of a significant net widening effectparticularly for Community Service Orders
and Periodic Detention
The other cautionary note is thatalternative sentencing options are usually

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
applied to those who would otherwise havereceived a relatively short sentence.
Logically, then large numbers of people inthis category will have to be diverted tohave a sustained impact on the prison
population. ( E.g. If 24 people who would
have been sentenced to 1 month in custody
are diverted in a 12 month period thiswould result in a reduction in the prison
population of only 2 people.)
Decarceration options
There are a variety of policies other thanalternative sentencing options that seek toreduce the number of people in custodythese include:•••

Decriminalisation e.g. removal of
criminal sanctions from Cannabis
related drug offenses.
Executive adjustments - pardoning andamnesties
Sentencing Reform - e.g. Minnesota
Sentencing Commission

Rationalising Resources
On a more pragmatic level overcrowding
can be addressed through therationalisation of resources. As I indicatedin the introduction, overcrowding is usuallymore than just a problem of bed shortages.
It is usually accompanied by a shortage ofresources. The most costly resource in theprovision of corrections is usually staffing.
Rationalisation can not compromise theagreed standards of care or nationalcorrectional standards that are usuallyderived from international charters ofprisoners rights and conditions.

sections of a correctional centre.
Correctional Programmes that are often
staff intensive and expensive also need to
be rationalised. In NSW we have adopted
a case management model and embraced
the risk, needs and responsivity
framework, which, when fully
implemented will ensure that those whopose the highest risk of reoffending are
targeted for the provision of programmes
and services.
VI. CONCLUSIONS
Overcrowding which is the outcome of
the interaction between a number ofdynamic factors can be managed with good
research and commitment. The simplest
way to do this, which is to create more
accommodation and to secure additional
resources may not be possible or desirable.
Causal factors are difficult to identify andto influence however there are a numberof remedial strategies that can be
implemented to reduce numbers. To beeffective, alternatives to imprisonment
must be imposed on those who would
otherwise be in full time custody.
Legislation must be thoughtfully drafted
to reduce the possibility of net-widening,
Strategies that result in shorter
sentences will be more effective than
reducing the number of short sentenced
admissions.
LECTURE 2 MANAGING WOMEN,FOREIGNERS AND DRUG USERS
I. INTRODUCTIONIn NSW some the strategies that havebeen adopted to some effect include••

reducing time out of cells (down tominimum of 8 hours in maximum
security gaols)
rolling lockdowns - which results in thescheduled and rotated lockdown of

In New South Wales, the Department ofCorrective Services has common objectives
for all inmates irrespective of their gender,race or offending profile. Two key result
areas as expressed in the Corporate Plan
are:

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RESOURCE MATERIAL SERIES No. 57
1. Managing Offenders - Safely andeffectively manage offenders while
enforcing the orders of the court anddischarging the ‘duty of care’;
2. Reducing Offending Behaviour-provide
opportunities and encouragement foroffenders to acquire insights and skills
to positively address deficits or
addictions associated with offending
behaviour.
The Department has adopted CaseManagement as the primary strategy for
managing all inmates.
Case Management is defined as:...a collaborative, multi-disciplinary
process which assesses, plans,
implements, co-ordinates, monitorsand evaluates options and services tomeet an individual’s needs (Inmate
Case Management Policy 1999).
After initial information is collected
about:• the inmate’s offence;• needs in relation to AOD issues;• mental health issues• health, welfare and education needs• work needs,
a case plan is developed by a multi
disciplinary Case Management Team. Thisinitial case plan will determine theinmate’s security classification andplacement and will make recommendations
concerning the type of treatment, education
and work interventions needed. When an
inmate is transferred to a correctional
centre of classification, the case plan isfurther developed by the CaseManagement Team and the inmate is
assigned a case officer. It is the role of thecase officer to monitor the inmate’s
progress on the case plan and to encourage
the inmate to participate in programmes,

230

work and counselling if appropriate. The
case plan is reviewed every 6 months by
the Case Management Team.
Case Management is the mostsignificant correctional activity
implemented by the Department in the last
10 years and is the process driving majorcorrectional reform. Through CaseManagement barriers between custodial
and non-custodial staff are gradually
breaking down as custodial staff take up a
more significant role in the managementof offenders rather than only the securecontainment of offenders. The Department
has recently commenced down a newpathway for assigning programmes andinterventions in the inmates case plans.
The new approach has been very muchinfluenced by the Canadian approach as
highlighted in the work of Andrews, Bontaand others28.
The profile of male and female offenders
in custody in NSW is different. Current
research shows that in the overall inmate
population:
•
•
•
•
•
•
•
•
•

over 15% of inmates are Aboriginal or
Torres Strait Islander
26% are from a non English speaking
background (NESB)
28% are aged between 18-24
13% have an intellectual disability
75 % have an alcohol and other drug
(AOD) problem
16% of males have been sexually
abused before the age of 16
21 % have, attempted suicide
40% meet the diagnosis of Personality
Disorder
60% not functionally literate or

28 See as an example Andrews, D.A.., et al (1 990) Does

Correctional Treatment work? a clinically-relevant
and psychologically informed meta-analysis.
Criminology, 28 369-404

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

•
•
•
•

•
•
•
•
•

numerate
44% were long term unemployed
60% did not complete year 10
64% have no stable family
over 35% are Hepatitis B or C positivein custody exceeds 10% of the total
population. However there are recent
indications of a disproportionate increasein the number of women. This is certainly
the case in Australia.

In the female population:

The research literature on ‘what works’has tended to neglect the interventions
provided for women, though it has been
confirmed29 that the principles of risk, need
and responsivity are equally important forgetting the best outcome for women.

25% are Aboriginal or Torres Strait
Islander39% previously attempted suicide
23% on psychiatric medication
73 % admitted to psychiatric or mental
health units
women have significantly higher levelsof illicit drug use, Hepatitis C,
depression and sexual abuse than men.
II. MANAGING WOMEN

It is clear from the above data thatwomen in custody are confronting different
issues. While these issues may not beuniversal, cross-national comparisonsshow considerable overlap. Women incustody are more likely to be victims ofphysical and sexual abuse, have issues
arising from their responsibilities tochildren, be addicted to drugs and to havemental health problems. Tables 4 and 5
also confirm that the offense profile forwomen in Australia is different to men,with women less likely to be convicted of
sexual assault and armed robbery, butmore likely to have been convicted of fraud.
Where women have been convicted forviolent offenses they are twice as likely as
men to have committed these offenders
against someone close to them, often theirspouse of partner who may have physicallyabused them.
Historically, the management andprogramming for women in custody has
tended to mimic what is done for men who
are in the majority. There are few
jurisdictions where the number of women

Programmes that are devised
specifically for women should take accountof women’s needs and responsivity. Their
greatest needs are for treatment of
substance abuse problems, trauma, basic
education and vocational training andparenting skills.
Barbara Bloom30 provides an excellent
overview of guiding principles andpractices for programming for women
offenders. She suggests that program
design must also provide an environmentthat supports recovery and is characterisedby Safety (“free of physical, emotional andsexual harassment”), Connection(“exchanges among the treatment groupfacilitator and group members feels mutual
rather than one way”) and Empowerment.
Programmes must also contain cognitive,
affective and behavioural components.
A recent national survey in the USA31,
confirmed the profile of female offenders
outlined above and noted that:

29 Andrews, D.A., and Craig Dowden, 1999.

A metaanalytic investigation into effective correctional
intervention for female offenders. lnterventions.
Canada30 Bloom, Barbara; 1999, Gender-responsive
programming for women offenders: guiding
principles and practices; Interventions, Canada,
1999

231

RESOURCE MATERIAL SERIES No. 57
The most commonly mentioned
management problem, noted in 11
states was in the area of classificationand screening... (which) did notprovide needed information, were notadapted to women, and were notuseful in matching women’s needs for
programming.
New South Wales a roach to
managing women.
In NSW the management of women
offenders has been driven by a series ofaction plans. The Women’s Action Plan 2
will be the guiding force for the
Department’s Women’s Program over the
next three years. This plan exists within
the broader context of the Department’s
Corporate Plan
The Department’s Strategic Plan
stipulates the priorities which must informthe further development of the Women’s
Program both in terms of capital works
initiatives and service provision. In
accordance with these overarching policies,
the Women’s Action Plan 2 emphasises:•

the delivery of programmes andservices reflecting a holistic approach
to women’s health and well-being;
the provision of flexible programmes for
women inmates in the areas ofrelationship and living skills, problem
solving, alcohol and other drugs andhealth education, vocational training,offence-specific programmes andrecreational activities;
the planning and management of
resources to ensure their equitableprovision;••

In June 1994, the Department ofCorrective Services published its first

Women’s Action Plan. It outlined a seriesof capital works strategies and maderecommendations concerning the provisionof programmes and services relevant to theneeds of women in the NSW correctional
system.
Since 1995, placement options,programmes and services for female
inmates have improved significantly:
•

•

•

•

31 National

Institute of Justice, 1998, Women
Offenders: programming Needs and Promising
Approaches. U.S. Department of Justice232•

in addition to the main women’s facility,
the Mulawa Correctional Centre, whichcurrently accommodates
approximately 285 sentenced andunsentenced female inmates, the Emu
Plains Correctional Centre wasestablished as a minimum security
facility for 138 women. A small 19 bed
facility for women (June Baker Unit) is
operating at the Grafton Correctional
Centre, and a separate unit for up to 8
women at the Broken Hill. Correctional
Centre. In 1996, the 21 bed ParramattaTransitional Centre for women andchildren was officially opened;a Women’s Services Unit (WSU) wasestablished with a mandate to provide
policy advice and advocacy at senior
management level of the Department
concerning the needs of female
inmates;a female-specific classification scheme
was introduced which takes into
account the circumstances ofincarcerated women. The underlying
principle of this is that women are lowrisk of violent offending but high need,
they generally do not requireconfinement in a secure facility and theprimary determinant of placement
should be program provision.
a Mothers and Children’s Program wasdeveloped to ensure that young
children of women serving a custodial
sentence were able to maintain an
ongoing relationship with their mother.
The Women’s Action Plan 2 will build

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
on the success of the Department’s
Women’s Program by consolidating theearlier capital works, policy andprogram initiatives.
The new strategies concerning the
Women’s Program have been derived fromseveral important sources including
consultation with inmates, Departmental
staff and community organisations andfollowing a systematic review ofprogrammes services and facilities:
The Mothers and Children’s Program,
the Transitional Centre Program, a GenderSpecific Classification and the Jacaranda
Cottages at the Emu Plains Correctional
Centre were initiated by the first Women’s
Action Plan. These are major initiatives
in the management of female inmates anda critical assessment of the impact andeffectiveness of these programmes is thelogical next step to ensure the consolidationof those strategies recommended in thefirst Women’s Action Plan. In evaluatingthese innovative policy and program
initiatives, the Department has not founda body of existing relevant research.. The
following evaluation framework is
proposed:••

short-term outcome measures, e.g.,
program participation, rule violation
and/or incidents, arrest for new
criminal offence;long-term outcome measurements, e.g.,
return to custody for violation ofprobation or parole, relapse fromalcohol and other drug recovery,
observed significant behaviour change,
employment status, type of new offence,
seriousness of new offence.

The evaluations will use recidivism as
an outcome measure of the effectiveness ofthe programmes but will combine
quantitative and qualitative researchmethods.

Mothers and Children’s Program
The recommendations of the Women’s
Action Plan in regard to mothers andchildren provided the impetus for thedevelopment of the Mothers and Children’s
Policy.
In developing the Mothers andChildren’s Program, the Department has
put the best interests of the children of
mothers who are serving a full-time prison
sentence at the highest priority. The
Department recognised that the continuity
in the relationship between the primarycarer and child is of great importance tothe child’s emotional, intellectual and social
development. The Department also
recognises that imprisonment in itself isneither evidence of a mother’s lack of desire
nor of her ability to perform her parental
duties.
The contradiction between providing
such as program for women and thecommitment to developing policies which
do not reinforce stereotypes is
acknowledged. However, women’s
statistical dominance in the correctional
system as primary care givers and the bestinterests of the children whose primarycare giver is imprisoned make thiscontradiction a necessary one. Secondary
benefits of the program include a likely
reduction in re-offending behaviour ofparticipants and alleviation of the distressand anxiety associated with the forced
separation from children.
The Department provides a range ofoptions to female inmates who wish to
assume an active parenting role. Primarycarers, irrespective of whether they are thebiological mother, are eligible to participate
in the program. Non-primary carers are
eligible to participate in the occasional
residence program with the writtenconsent of the primary carer of the child orchildren.

233

RESOURCE MATERIAL SERIES No. 57
The Mothers and Children’s Program
includes the following options:•••permitted absence pursuant to Section
29(2)(c) of the Correctional Centres Act.
caring for child or children full time
whilst in custody, up to school age. ie
The Full Time Residence Program.
occasional accommodation for children
such as weekends and/or school
holidays up to the age of 12 years. (The
Occasional Care Program)

These options are administered with asmuch flexibility as possible in order to meetthe needs of individual women andchildren. Decisions regarding Section
29(2)(c) absence and the Full Time
Residence Program are made after asubmission is placed before the Mothers
and Children’s Committee.
Once the applicant has satisfied thecriteria for the program, the submissions
are then placed before the Committee anddiscussed. The application is thenrecommended for approval or notrecommended. The Co-ordinator thenplaces the submission before the AssistantCommissioner Inmate Management andthen to the Commissioner for final
approval.
The guiding principles of the policy are:the best interests of the child is theparamount consideration;• imprisonment in itself is neither
evidence of a mother’s lack of desire,
nor of her ability to perform herparental duties;• p a r t i c i p a t i o n i n t h e F u l l Ti m e
Residence Program is the option of lastresort, to be utilised when there are nosatisfactory alternatives for theplacement of the child or children
available;• children residing in, or spending time
at a correctional centre are the sole
•

234

•

•

responsibility of their mother;p a r t i c i p a t i o n i n t h e F u l l Ti m e
Residence Program must never be used
as a part of the hierarchy of privileges
and sanctions;
the Mothers and Children’s Program isdesigned to meet the highest
community standards of childprotection.
Since December, 1996 until January,
2000 the Mothers and Children’s
Program has been responsible forassisting;

Section 29(2)(c) absence
Full time
Residence Program
Occasional
Care Program

Women

Number ofchildren

10

19

21

23

34

46

With the planned expansion of Emu
Plains, it will be possible to also
expand the Mothers and Children’s
program to provide more beds.
Employed at Emu Plains is a Family
Support Worker who is involved daily inthe operation of the Program. This person
has developed and introduced to the Centre
a network of community agencies that
support the women and their children. The
women are also assisted with a pre-releaseplan through Inmate Development staff
who also run such groups as; Domestic
Violence, Alternative to Violence Groups,
Drug and Alcohol Counselling,
Psychological Counselling, Welfare
Assistance, Education.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
III. MANAGING THOSECONVICTED OF DRUG RELATEDOFFENSES
One outcome of the increased pattern ofdrug use in the community has been adisproportionate increase in the number ofdrug users in custody. As previously
mentioned over 75 % of people in custodyin New South Wales admit to having
alcohol or other drug problems. Drug abuse
itself is criminogenic in that it can lead tocriminal behaviours. This can be throughthe disinhibiting and other effects of drugs
on behaviour and through the activities
people engage in to get money to support
h a b i t s . I l l i c i t d r u g u s e , s u p p l y,
manufacturing and importation may all
result in criminal sanctions including
imprisonment for lengthy periods.
Part of the response to drug use inprisons, must include action to eliminate
drug trafficing into prisons. Increasingly
t h e u s e o f t e c h n o l o g y, i n c l u d i n gsurveillance, urinanalysis, ultrasound has
been introduced to combat this problem inconjunction with more traditional
techniqies of searching, use of sniffer dogs
and intelligence. However, the use of drugs
in prisons will be difficult if not impossible
to eliminate because of the requirement toallow prisoners reasonable contact withfamily and friends and because of thepossibility of staff corruption. As well as
attempting to eliminate drugs, correctional
authorities have an obligation to minimise
the harmful effects of drugs and to provide
opportunities to treat addiction and help
break the drug/crime cycle.
What works?
While many drug treatment
programmes have been individually
evaluated, there are few large scale reviewsof effectiveness of treatment programmes.
An excellent report that has recently been
completed by Pearson and Lipton32 whoreported positive outcomes for, intensive‘therapeutic community’ intervention,
methadone maintenance and cognitive
behavioural programmes. ‘Boot Camps’
and drug focussed group counselling
programmes were not shown to be effective.
This has been reported elsewhere.
Alcohol and Other Drug Services in
NSW
The Alcohol and Other Drug Health
Promotion Unit (AOD/HHPU) provides
services to inmates within the ‘harm
minimisation’ framework. Its core businessis to assist inmates reduce the harm (bothindividual and social) associated with
substance use, as well as facilitate healthpromotion workshops and courses that
educate inmates on safer practices relating
to substance use, universal infection
control issues and healthy lifestyles. These
courses are run in each centre.
The harm minimisation framework iscontentious, and those who favour
abstinence often express the view that it isan admission of failure. It has been
adopted in NSW because drug use isregarded as complex social and medical
phenomenom rather than a criminal one
and because failure to adopt has
undesirable public health consequences
particularly in the transmission of HIV and
Hepatitis C.
Programmes and services are provided
to male and female inmates that address
issues of relapse, substance related
recidivism and health promotion projects.
Within this brief there are specificprogrammes targeting women, indigenous
inmates, inmates with intellectual
disabilities, inmates from NESB and young
32 Pearson, F.S and Douglas Lipton, 1999; A meta-

Analytic Review of the Effectiveness of Correctionsbased Treatments for Drug Abuse; The Prison
Journal, Vol 79 N04, December 1999

235

RESOURCE MATERIAL SERIES No. 57
adult offenders. There are drug free wings
in 3 centres, and a Therapeutic Unit willcommence at Long Bay in July 2000. These
programmes focus on pre release andtransition and are part of the Department’s
commitment to through care andcommunity involvement. A work inprogress is the AOD Women’s Transitional
Centre for female offenders and theirchildren. (See Appendix 1 for acomprehensive list of programmes)
AOD Workers provided services toinmates on 245,109 occasions and increaseof 67,278 since 1997/98; attendance at AOD
group sessions during 1998/99 increased to
22,008 from 18,240 in 1997/98.
Intensive Alcohol and Other Drug
Programmes
The Alcohol and Other Drug Health
Promotion Service has implemented
various strategies to address the needs ofthose inmates who have identified ashaving a substance use problem. These
strategies range from the Core AOD HHPU
Programmes, Peer Support Programmes
and the contributions of various
community organisations to the more
specialised and intense programmes thatwill address the issues of relapse andrecidivism for inmates with high incidenceof relapse.
A treatment pathway for these inmateshas been developed, starting at entry to a
“Drug Free Wing” and extending to a prerelease/transition program for C2 and C3
category inmates. The Drug Free wings
are in three Correctional Centres,
Parramatta, Emu Plains and Cessnock.
These wings operate within the normal
gaol routine and the programmes andservices attached to these areas have an
extensive group work component andcommunity involvement. Inmates whoenter these wings are selected through anassessment criteria which includes236

remaining time to service of not less than
3 months and no more than 6 months.
They are required to sign a contract inrelation to participation in the program andare subject to random urinalysis testing.
The urinalysis procedure will work under
the umbrella of harm minimisation, thatis, there will be a hierarchy of punishments
and the use of relapse prevention tools as
an education strategy.
For women, this Drug Free Wing will run
along the same gaol routine as the males,
however, it will focus more on living skills,
parenting issues, job skills and conflict
resolution in terms of their substance use.
All of the programmes attached to theseprojects will have a strong CBT theoretical
approach, with the long term aim of
reducing offending behaviours.
The AOD Therapeutic Unit located at
Long Bay will house 40 men and is a prerelease program, with inmates being in thelast 12 - 14 weeks of their sentence. The
program content will be strongly linked tothe community, and will facilitate social
supports, networks with housing, TAFE
and Centre Link, as well as nongovernment agencies involved in the
rehabilitation of these inmates. There will
be a family component to this program andinvolvement with Probation and Parole.
These intensive programmes have been
well researched and whilst it isacknowledged that addiction is a complex
issue with many variables, this whole ofcommunity approach to service provision
looks promising in terms of successful
outcomes. All programmes in this unit will
be educational, therapeutic and cognitively
based. The same local policy in relation tourinalysis at Parramatta Drug Free will
apply to this unit.
The Lifestyles Units, (one for men in the
MSPC and a work in progress for womenat Mulawa) will address the issue of

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
healthy living in relation to HIV/AIDS and
Hepatitis. These units have programmesthat are holistic and give the residents
factual information based on research into
the use of alternative medicines.
Following the NSW Drug Summit, which
was held in May 1999, funds were provided
to expand the Department’s alcohol andother drug services. Key features of the
expansion include: the establishment of
three detoxification units; theestablishment of a transitional centre forwomen with AOD problems; theestablishment of three healthy lifestylezones (drug free wings); a proposed review
of AOD programmes and services. All ofthese projects are in the development and/or implementation stage.
Assessment, Detoxification andPharamacotherapies
The provision of appropriate medical
intervention is also a fundamental
requirement. In NSW a Drug and Alcoholassessment is a routine component of thereception medical screening which iscompleted within hours of arriving incustody. Where an inmate self reports ahistory of recent drug use and displays
clinical signs of withdrawl, a medical
detoxificaiton regime commences. The
protocol applied depends on the nature andintensity of drug use. It is most common
however for prisoners to be poly-drug
abusers, with the current drugs of choiceincluding combinations of heroin,amphetamines, barbiturates, and alcohol.
The protocol could require intensive
supervision in a detoxification ward orunder 24 hour camera surveillance.
Medication is also provided to alleviate
withdrawal symptoms that could include,nausea, vomiting cramping andconvulsions.
NSW was one of the first jurisdictions
to introduce methadone maintenanceprogrammes and recent research continues
to confirm the success of this particularly
in reducing transmission of Hepatitis C.
HIV is not a major problem in NSW gaols.
Clinical trials are now set to commence
in prisons on the effectiveness of a numberof new drugs including Naltrexone andLong Acting Methadone (LAM).
IV. MANAGING FOREIGNERS
The issues surrounding themanagement of foreign born prisoners will
be very different between countries.
New South Wales is one of the mostculturally diverse societies in the world.
••

41 % of the NSW population was eitherborn overseas or has at least one parent
born overseas
25 % are from non-English speaking
countries.

It is not surprising to find large numbersof people who come from non-English
speaking backgrounds in prison as this isrepresentative of the general population.
There are a number of challenges howeverarising from this complex racial mix.
In 1996 the NSW parliament enshrined
the principles of cultural diversity. Theseare
Principle 1: All individuals in NSW shouldhave the greatest possible
opportunity to contribute to all
aspects of public life.
Principle2: All individuals and public
institutions should respect
and accommodate the culture,
language and religion ofothers within an Australianlegal and institutionalframework where English is
the primary language.

237

RESOURCE MATERIAL SERIES No. 57
Principle 3: All individuals should havethe greatest possible
opportunity to make use ofand participate in relative
activities and programmes
provided or administered byt h e N e w S o u t h Wa l e s
Government
Principle 4: All public institutions in NSW
should recognise the linguistic
and cultural assets in the
population of NSW as avaluable resource andpromote this resource tomaximise the development of
the State
As an instrument of government, theNSW department of Corrective Services
under this charter has a number ofobligations which focus on language,
cultural and religious differences of theinmate population.
Inmates from non-English speaking
backgrounds who are well represented in
the inmate population include, Middle
Eastern (mainly Lebanese), Polynesianand Pacific Islanders, and Vietnamese.
The Department’s efforts are focussed n
a number of areas.
1. Communication
which involves the mandatory use ofinterpreters in range of interactions.
Multi-lingual translations of key
information documents
2. Recruiting and training
actively recruiting staff from key
language and cultural groups,
provision of cultural awarenesstraining
3. Programmes
development of targeted programmes
eg English as a second Language,
AOD programmes for Vietnamese
inmates etc

238

4. Religion and culture
Facilitating religious and culturalactivities for key groups
5. DietAccommodating specific dietaryrequirements including Halal,
Kosher &Vegetarian
To foster the appropriate attitudes andskills among staff, my division has recently
completed an interactive training programon CD ROM that is designed to inform staff
about the special needs of prisoners from
non-English speaking backgrounds. I will
be demonstrating this CD-ROM during mytalk and providing a copy for course
participants.
A concerted effort is still required
because despite the best efforts of the
Department, prejudice and discrimination
within the inmate population and between
inmates and staff remains a problem.
Gangs
A further issue that has recently arisen
has been the increasing influence of gangaffiliations in the inmate population.
Gangs are not entirely racially based,
however there has been recently been anumber of disturbances where inmateshave been divided on racial lines. The
major race based Gangs are Vietnamese,
Lebanese, Aboriginal and Pacific Islanders.
Associations between these groups appear
to be fluid. One of the dilemmas that arises
in managing these groups is whether theyshould be permitted to aggregate in a single
location or whether they should be
dispersed. Clustering of ethnic groups has
some benefits for the concentration ofservices but acts to reinforce the gangmentality.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
APPENDIX 1
INMATE PROGRAMMESProgram
Relapse Prevention Program

Harm Minimisation Drug Education
ProgramDrink Driving Surviving Program
Quit Smoking Program
Anger Management Program
Alcohol and Violence Program

AOD [Acohol and Other Drugs]
Aw a r e n e s s f o r R e m a n d I n m a t e s
Program
Staying Alive Program
Methadone Lifestyles Program

AOD Peer Education Program

One-day Peer Support Program

Three-day Peer Support Program
Sweepers Program
Barber Shop Program

What the program does
Inmates learn techniques to assist themto maintain, during the remainder of theirtime in prison and after release, changes
in relation to their drug and alcohol use
Inmates learn how to identify harms
associated with their substance use andhow to reduce those harms
Inmates learn the risks associated withdrink driving and how to put in place stopbehaviours upon return to the community
Inmates learn the health risks associatedwith smoking and receive a set ofstrategies to quit
Inmates learn more appropriate ways ofhandling their stress and their current
responses to crisis
Inmates learn about violence in all its
forms - in particular, the relationshipbetween alcohol and violence - and learn
techniques to stop or severely limit that
violence
Inmates on remand or with low literacy
make the connection between their crimes
and prison, and put in place strategies toreduce recidivism
Intellectually disabled inmates take partin a program which facilitates learning in
relation to their drug use
Inmates learn about the effects ofmethadone, health and hygiene associatedwith methadone, social implications ofmethadone and coping skills
Inmates gain skills to enable them to be amentor to other inmates with a drug
problem by initiating health promotion
activities
Inmates learn how to mentor otherinmates in relation to risk behaviours,
how to promote healthier living and how
to use infection control procedures
Same as one-day program but at greater
depth
Inmates learn about infection control
procedures and cross-infection and how to
use chemicals safely
Inmates learn the duties of a barber,including infection control procedures,and how to clean barber shop equipment
239

RESOURCE MATERIAL SERIES No. 57
ProgramMens Health Program (joint program with

Smoking Cessation Program (joint
program with Corrections Health Service)
Mothers and Children Program

Personal Ownership Identification and
Self Esteem Program (POISE)
Women’s one-day health information
package
Women’s three-day health information
package
Women’s Health Program (joint programwith Corrections Health Service)
Stop-Doin’-Harm-to-Yourself Program

Say-No-to-Grog Program

Getting Respect Program

Alcohol and Violence Program

Intro to Aboriginal AA [Alcoholics
Anonymous] Program
Aboriginal one-day health information
package
Aboriginal three-day health information
package
Women’s Cultural Drug Package Program

Pat gets a deadly new life

240

What the program does
Inmates identify issues relating totesticular and prostate cancer, healthy
heart and diet
Inmates follow the Quit Smoking Programwith continued awareness of emphasis on
health risks to self and others
Inmates are granted leave of absence tocare for their small children; children canlive with their mothers or have all-day
visitsFemale Inmates learn living skills and arelinked with community agencies for followup upon release
Inmates identify the risks associated withdrug use and put in place strategies toreduce the level of risk
Same as one-day package but at greater
depth
Inmates identify health issues specific towomen, such as breast cancer, diet andimage
Indigenous inmates undertake a harm
minimisation drug education program
designed specifically for themIndigenous inmates learn that they areable to choose whether or not they will
follow the example of peers who drink
Indigenous inmates learn that violence is
not the way to get true respect from theircommunity
Indigenous inmates undertake an alcoholand violence program designed specificallyfor them, with an emphasis on family
violence issues
Indigenous inmates obtain social support
through a self-help network
Indigenous inmates identify the risks
associated with drug use and put in placestrategies to reduce the level of risk
Same as one-day package but at greater
depth
Female indigenous inmates identify thesocial implications of drug use and makechoices rather than be influenced by peers
and society
Indigenous inmates identify the risks
associated with use of particular
medication

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
AOD Peer Education Program for
Vietnamese Inmates
Vietnamese health information package

Certificate of General Education for
Adults• Reading and Writing• Numeracy• Oral Communication• Options-

Library and Research Skills

-

Art

-

English as a Second Language-

Horticulture-

Information Technology-

Workplace Communication-

Graphic Design-

Ceramics-

Stained Glass-

Screen Printing-

Painting and Decorating-

Sewing and Craft

-

Music

-

Health and Fitness-

Backhoe/Loader/Forklift-

Leather draft-

Chain-saw Operation-

Horsemanship-

Woodwork-

Textile Upholstery-

Aboriginal Studies-

Hospitality-

Video Production-

Calligraphy-

First Aid-

Legal Studies-

Maori Studies

-

Drama

-

Cooking-

Small Business Management

Vietnamese inmates undertake the AOD
Peer Support Program designed
specifically for them
Vietnamese inmates learn how to assess
their risk behaviours and replace thosebehaviours with more appropriate
behaviours
This Certificate may be undertaken at
three levels. Level 1 is roughly
equivalent to Year 10 secondary
schooling. Level 3 may allow a person
to gain university entry to particular sub
jects.
Four subjects must be studied at level 1.
Three subjects must be studied at level 2.
Two subjects must be studied at level 3.

241

RESOURCE MATERIAL SERIES No. 57
External attendance courses
TAFE courses- First Aid- Ceramics- Information Technology- Community Services Welfare- Engineering Production- Clothing Production- Carpentry- Rural Welding- Cleaning Operations- Computing Skills- Cooking/Hospitality- Commercial Cookery- Small Motor Service- Kitchen Practice- Horticulture Operations- Upholstery- Adult Foundation Education- Bricklaying- Painting/Decorating- Cabinet-making- Forest Products Operations- Welding- Farm Chemical User
- Small Business Management- Forklift Operating- Fitness Instruction

242

Selected inmates are granted leave ofabsence to attend courses held byeducational institutions

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Certificate of General Education for
Adults• Reading and Writing• Numeracy• Oral Communication• Options (Mulawa)- Pottery- Music- Legal Studies- Creative Writing- Paper-making- Aerobics- Food and Nutrition- English as a Second Language- Art- Landscaping• Options (Emu Plains)- Ceramics- Paper-making- Music- Art- Koori Art- Life Skills- Horticulture- Information Technology- Screen-printing
The range of options available at Graftonand Broken Hill Correctional Centres
are necessarily more limited.
External attendance courses

This Certificate may be undertaken at
three levels. Level 1 is roughly
equivalent to Year 10 secondary
schooling. Level 3 may allow a person
to gain university entry to particularsubjects.
Four subjects must be studied at level 1.
Three subjects must be studied at level 2.
Two subjects must be studied at level 3.

Selected inmates are granted leave ofabsence to attend courses held byeducational institutions

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RESOURCE MATERIAL SERIES No. 57
TAFE courses (Mulawa)- Adult Foundation Education- Focus on Skills- Horticulture- Aboriginal Mentor Training- Forklift Operations- Information Technology- Occupational Health and Safety- Painting and Decorating- Building and Construction- Creative Activities for Children- Manufacturing Engineering
TAFE courses (Emu Plains)- Children and Play
- Hospitality- Information Technology- First Aid- Forklift Operations- Tractor Operations- Small Motor Service- Painting and Decorating- Office Practice
Additional courses available for Aboriginal inmates
Aboriginal inmates may attend any mainstream course. Courses designed specificallyfor Aboriginal inmates are:
• Aboriginal Native Gardens• Aboriginal Arts and Cultural Practice• Aboriginal Mentor Training• Aboriginal Dance• Aboriginal Art• Aboriginal Carpentry and Joinery• Aboriginal Vocational Preparation• Aboriginal Mural• Aboriginal Dance• Aboriginal Industry
Additional education courses available for ethnic inmates
The only educational course specifically designed for ethnic inmates is English as a
Second Language.

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APPENDIX 2
INTENSIVE RESIDENTIAL UNITS
Unit
Kevin Waller Unit
Malabar Special Programmes Centre

Acute Crisis Management Units
Bathurst Correctional Centre
Cessnock Correctional Centre
Malabar Special. Programmes Centre
Lifestyles Unit
Malabar Special Programmes Centre

Violence Prevention Programmes
Alexander Maconochie Unit and Special
Care Unit
Malabar Special Programmes Centre
Healthy Lifestyles Zone (Drug-Free Wing)
Parramatta Correctional Centre
Emu Plains Correctional Centre
Intensive Case Management Unit
Goulburn Correctional Centre

Long Bay Hospital
Mum Shirl Unit
Mulawa Correctional Cehtre
Additional Support Units
Special Purpose Centre, Long Bay
Goulburn Correctional Centre
Detoxification Units
Metropolitan Remand & Reception Centre
Mulawa Correctional Centre
Jacaranda Cottages
Emu Plains Correctional Centre
Transitional Centre, Parramatta
Sex Offenders Program
3 and 4 wing and CUBIT at the MSPC
Young Adult Offenders Program
Gurnang Life Challenge Program Oberon

Relevant inmates
Inmates chronically at risk of suicide, withhistories of self harm because oflongstanding poor coping skills and severe
personality disorder.
Inmates in acute crisis and at risk of selfharm or suicide.

Inmates who are diagnosed with HIV or
Hepatitis C who wish to undertake an
intensive health education program toassist them to come to terms with theirillnesses
Inmates who are convicted of violent
offences and or exhibit violent behaviour
in prison.
Inmates who have been drug-affected andare prepared to participate in a special
program to assist them to remain drug freeand prepare them for release
Inmates who do not comply with normal
prison discipline and are assessed as
dangerous to others or as high risk ofescape.
Inmates who are physically or
psychiatrically ill
Female Inmates with chronic psychiatricillnesses, personality disorders or
intellectual disability.
Inmates who have an intellectual
disability and are unable to manage in themainstream environment.
Inmates undergoing detoxification after
reception into the correctional system
Female inmates and their children. The
children live full time or at school holidays
with the their mothers in the Units.
Female inmates approaching release
Specialised sex offender management
centres and an intensive residential unit.
Selected young inmates participate in ahighly structured adventure based
physical challenge and education programat Oberon Correctional Centre.

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APPENDIX 3
PROBATION AND PAROLE SERVICE PROGRAMMES AVAILABLE TO
PAROLEES
ProgramParole group

Drug and Alcohol Program

Relapse Prevention Program
Dependency and Lifestyle Program
Alcohol and Cannabis Program

Living Without Violence Program

Minor Drug Offenders Program

Personal Development Program

Anger and Aggression Management

Drink Driving Program

246

What the program does
Offenders participate in specificallytailored programmes which address issues
such as community re-integration, goal
identification, personal and social
development
Offenders are presented with thephysiological and social implications of
substance abuse within a legal framework
Offenders are taught skills to prevent theirreturn to a substance-dependent lifestyle
Offenders are educated in the benefits ofa lifestyle free from substance dependence
Offenders are presented with thephysiological and social implications of
substance abuse within a legal framework
Offenders learn personal skills to assist
them to resolve problems and relationshipissues without recourse to violence
Offenders who have developed a patternof involvement in minor drug offending aretaught the ramifications of continuingthese practices
Offenders deal with a variety of personal,social and legal issues to assist theirpersonal development
Offenders learn how to deal with theiranger without recourse to anti-social
behaviour
Offenders are presented with the legal
issues and ramifications of drink driving
in a framework which addresses behaviour
and attitude

115TH INTERNATIONAL TRAINING COURSE
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Program
Traffic Offenders Program

Driver Education Program

Life Management Skills Program

Living Skills Program

Social and Legal Issues Program

Women’s Issues

Responsible Living Education Program

What the program does
Offenders are presented with the legal
issues of traffic offending in anenvironment which utilises the expertiseof relevant community groups (eg Police,
Vista [families of persons killed in vehicle
accidents])
Offenders are presented with the legal
issues and ramifications of offending by
way of driving matters in a framework
which addresses behaviour and attitude
Offenders deal with a variety of personaland social issues, with an emphasis on
skills acquisition to obtain employment.
The program operates in collaboration
with TAFE, and emphasises education
opportunities
Offenders deal with a variety of personaland social issues, with an emphasis on self
development to improve prospects ofgaining employment
Offenders learn the social and practical
implications of offending behaviour byfocussing on relevant legal issues
Offenders (female) address issues relevant
to women in the context of a personal
development framework
Offenders deal with a variety of personal,social and legal issues in a model which
addresses responsible societal behaviour

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MANAGING PRISON POPULATION GROWTH, DELIVERINGEFFECTIVE COMMUNITY-BASED CORRECTIONS AND
TREATING DRUG-RELATED AND FEMALE OFFENDERS
Laurence L. Motiuk*
INTRODUCTION
Criminal justice policy makers andpractitioners have the lead role inmanaging prison populations, deliveringcommunity-based corrections and treating
offenders. Because of the enormous socialand economic costs to society, crime control
continues to present a serious challenge formany countries. Internationally, changes
in legal definitions coupled with reduced
public tolerance for crime and focused
media attention have led to increases insanctioning - both custodial and noncustodial - of offenders over the last decade.
Realizing that the public, in general,
does not fully understand the innerworkings of the criminal justice system(Roberts, 1993), service providers are being
called upon to provide accurate informationon the care, custody, control and safe
reintegration of offenders. Knowing alsothat the media has stretched public
acceptance to the limit for any correctional
failure means that service providers needto learn everything there is to know about
effectively and efficiently managing prison
population growth, delivering communitybased corrections and treating special
offender groups such as drug-related andfemale offenders.
To summarize - public opinion, staff andoffenders exert significant influence over
the realization of correctional objectives. In
particular, the task of safely reducing thesize of the prison population and returning
drug-related and female offenders to the*

Canada248

community falls squarely of those working
in correctional facilities and the community
at large. Certainly, these people are being
called upon to deliver more sophisticatedservices to a clientele constantly changing
and for a public that is uncertain.
Moreover, correctional staff and volunteers
must do so in a safe, effective and cost
efficient manner as possible. This, then,defines the problem statement forcorrections - the care, custody, control andsafe reintegration of offenders. The
following paper provides background anda framework for this important work.
A. Managing Prison Population
GrowthAs constant as growth in the use ofprison has been over recent decades, it is acommonly held notion that it will likely
continue well into this century. In North
America, roughly one-fifth of those undercorrectional supervision (2000 — 2 million
in the United States and 34,000 in Canada)
are in prison (growing at a rate of nearly
3% per year in the United States anddeclining at a rate of 3% per year in
Canada). Although international trends
indicate that there will likely be larger
prison caseloads to manage (Walmsley,1999), it is notable that Canada has begun
to experience a recent decline in theirprison population.
In Canada, the ten provinces are
responsible for accused persons remanded
to prison before trial, young offenders(under 18), probation, adult offenders
sentenced to under two years incarcerationand parole supervision in three provinces.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The federal government is responsible for
adult offenders sentenced to two years ormore prison and parole supervision. The
National Parole Board decides conditional
release for all federal offenders andprovincial offenders in most provinces.
Between 1990-91 and 1992-93 thenumber of Provincial/Territorial prison
admissions increased by 22.5%, from207,946 to 245,746. Similarly, federal
prison admissions increased 21.4%
between 1990-91 and 1993-94 (peaking one
year later than Provinces/Territories) from
4,646 to 5,642. The increase in admissions
contributed in large measure to the rapid
growth of the Canadian prison populationin the 1990’s. Moreover, the total actualin prison population rose by 16% between
1990-91 and 1994-95 from 29,224 to 33,882.
Because of this rapid growth in the prison
population, the Federal/Provincial/
Territorial Ministers responsible for Justicein Canada asked Deputy Ministers andHeads of Corrections to identify options todeal effectively with the growing prison
population (Motiuk & Serin, 2000). A paper
entitled ‘Corrections Population Growth’
was subsequently developed and presented
to the Ministers in May 1996 with a set of
eleven recommendations. Additional
recommendations were made in the ‘First
Report on Progress’ (CPG 1997).
Eleven recommendations made to assistin addressing correctional population
growth throughout Canada were:
1) endorsing a shared statement ofprinciples for the criminal justicesystem;2) making greater use of diversion
programs and other alternative
measures;3) de-incarcerating low-risk offenders;
4) increasing the use of charge screening;5) making wider use of risk prediction/assessment techniques in Criminal
Justice decision-making;6) increasing the use of Restorative
Justice and mediation approaches;7) supporting Provincial conditional
release recommendations to amend thePrisons and Reformatories Act for
greater administrative flexibility;8) better sharing information andtechnologies within the system;9) better informing the public about
criminal justice dynamics and issues;10) testing innovative, traditional methods
based on restoration and healing
through Aboriginal justice andcorrections pilot projects; and11) working more co-operatively on
programs and services throughFederal/Provincial/Territorial pilot
projects.
Additional recommendations included:
1) evaluating diversion programs toinclude a component on net-widening;2) developing technology to assist with the
integration of systems;3) sharing research findings on program
effectiveness; and4) amending a principle contained inrecommendation #1 - “incarceration
should be used primarily for the mostserious offenders and offences where thesentencing objectives are public safety,
security, deterrence or denunciation andalternatives to incarceration should besought if safe and more effective
community sanctions are appropriate
and available”.
These recommendations inspired theformation of numerous working groups at
all levels of government across Canada.
These people were tasked with designing,developing and implementing creative
options to deal more effectively andefficiently with prison population growth.
Another important step towards thisobjective was to gain a better
understanding of the most importantfactors influencing the size of the prison

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RESOURCE MATERIAL SERIES No. 57
population.

been declining in recent years.

Factors Influencing the Size of the
Prison Population
Throughout the 1990s, Canadian crime
control practices resulted in changes incriminal code, reporting of crime, court
processing, sentencing and conditional
release policy and practice. Aside frompublic policy for crime control and causal
factors linked to crime (such as childpoverty, family breakdown, poor education
and unemployment), six major factors areseen to account for the size of the prison
population. They are: 1) crime rates, 2)sanctioning (incarceration rates), 3)
sentence lengths, 4) release policy andpractice, 5) offender population profile and6) successful reintegration/recidivism.
Another important factor is the offender
profile (such as number and variety ofprevious youth or adult convictions, escapehistory, personal characteristics, etc.) of theprison population.

Sentence length and prison release
policy/practice are two determinates of theaverage length of stay in prison. Morespecifically, sentence length determines not
only how much time will be spent in a
prison but also the earliest possible date
for supervised release in the community.
Corrections practitioners can impact on the
average length of stay in prison by assistingin the selection and preparation of
offenders for early release and contributing
to their successful reintegration to thecommunity with prescriptive intervention
and appropriate supervision. Taken
together, shortening the average length ofstay of prisoners and reducing recidivism
should result in a lowering of the size ofthe prison population.

The crime rate, particularly the type ofcrime and the extent to which offenders aresentenced to a period of incarceration are
the main determinants of prison admission
rates (see CSC 2000). In contrast to earlier
periods, since 1991 the overall trend in thenumber of offences in Canada has been
downward. In fact, between 1991 and 1998
there has been a 15% decrease in theoverall number of offences reported bypolice. More importantly, since 1993, mostcategories of violent crime (homicide,sexual assaults and robbery) have also
decreased. Although comparisons ofEuropean and North American
imprisonment rates in 1997 show Canada
to be relatively high (129 per 100,000
population), it is significantly below theUnited States (645 per 100,000). While
there had been a notable increase in annual
Canadian prisons admissions in the early
1990s, sentenced offenders admitted toFederal/Provincial/Territorial prisons have250

Prison Population Management Offender Reintegration
Offender reintegration can be defined as
all activity and programming conducted toprepare an offender to return safely to thecommunity as a law-abiding citizen( T h u r b e r, 1 9 9 8 ) . R e i n t e g r a t i o nencompasses a broad range of decisions
intended to: place offenders in the least
restrictive setting possible, grant
temporary absence or conditional release,and invoke suspension or revocation of
conditional release when necessary(Motiuk & Serin, 1998). Correctional
service providers can impact on the numberof prison releases, the number of prisoners
granted conditional releases, the number
of offenders who remain incarcerated pasttheir parole eligibility dates; and thenumber of cases who are not reviewed
because they were not prepared in time.
Therefore, safe, effective and efficient
reintegration can yield fewer days spent inprison.
When there is a significant number ofdays less of incarceration for a prisoner this115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
has particular relevance for population
management when accumulated overmany cases. Sixteen reintegration levers
are suggested considerable opportunity for
impacting on the size of the prison
population (Motiuk, 1998).
Reintegration Levers
1. Classifying Initial Security Level
Initial security level placement has an
impact on the probability and timing of
discretionary release.
2. Profiling reintegration potentia
Accurate profiles of each offender ’s
release potential and post-releaseadjustment serves as a means to predict
good candidates for early release and canhelp to establish case preparation priorities.
3. Developing Correctional Plans
The correctional plan is the foundation
upon which prison release is predicated andoften the basis on which discretionary
release is supported or denied and often
understood or have the tendency to become“binding contracts”, especially when theplan is associated with a statement of
reintegration potential.
4. Improving Program Motivation
Offenders who are highly motivated tosucceed in programs represent prime
candidates for successful reintegration.
Motivation is often a critical factor in parole
officer support for program referral,
participation, progress and early release.
Accurately assessing offender motivation totarget offenders for program participationand to establish release priority can makean important contribution to safe
reintegration.
5. Increasing Program Participation
Institutional program participation often
consumes a large proportion of casepreparation time and often becomes a major
cause of delays in release. Successfulprogram participation has been
demonstrated to improve the likelihood of
post-release success. Indiscriminate
assignment to programs, where the need isn o t i d e n t i f i e d o r, t h e p r o g r a m i sinappropriate, may offer no benefit or
actually contribute to conditional release
failure.
6. Ensuring Program Completion
Program participation is a criticalfoundation for the safe release of offenders.
The full effects of programming are notalways fully known, however, completing
programs provides important information
about post-release success; and program
non-completers impose a cost both in termsof wasted resources and in depriving
motivated offenders program opportunities.
7. Improving Program Performance
The assessment of program performance
although critical in the decision to support
early release, is often subjective and largely
without guidelines. Assessing program
outcome/gain or relating program
performance to reintegration potential andpost-release adjustment is important.
8. Referring for Preventative Detention
Increasing preventative detention
referrals (to be held to the end of sentence)
results in longer incarceration periods.
Profiles of offenders who are returned tocustody following detention can beestablished and provide the basis for
improving detention referrals.
9. Moderating Segregation
Placement in segregation for disciplinaryor administrative reasons is a major
impediment to correctional progress andearly release. Profiles of offenders identified
as “at risk” to be segregated provide an
opportunity to develop interventions
designed to divert offenders fromsegregation and to ensure their quick
discharge; effective implementation of251

RESOURCE MATERIAL SERIES No. 57
segregation policies can prevent the
segregation of some offenders and ensure
the speedy release of others.
10. Reclassifying Security Level
Reclassification and expeditious transfer
of offenders to the “least restrictive measuresof confinement” can improve the offender’schances for earlier, discretionary release.
11. Increasing Temporary Absence
Participation in either escorted or
unescorted temporary absence programs are
critical to establishing offender credibility
for early release and re-establishing the
temporary absence program can make amajor contribution to safe reintegration.
12. Enhancing Case Preparation
Case preparation is the total of allactivity designed to prepare appropriate
offenders for early release and manage themthroughout conditional release. Achieving
modest efficiencies at any one of a numberof critical stages along the casemanagement continuum can result insignificant reductions in “days ofincarceration” and a corresponding
increase in community supervision.
13. Encouraging Community Release
Participation in either work release orvarious types of early release programs(such as day parole, correctional halfway
house placement, community correctional
centres, attendance centres) are critical toestablishing offender credibility for full
release and re-establishing the view that
this type of programming can make a major
contribution to safe reintegration.
14. Enhancing Community Supervision
The effective use of minimum frequency
of contact guidelines and special conditions
can play an important role in determining
whether offenders successfully complete
their conditional release.

252

15. Reducing Suspensions
Reintegration success can also be
achieved by maintaining conditionallyreleased offenders in the community;
predicting offenders who will be suspended
is greatly improved by use of risk
measurement techniques; and suspension
practice is subject to broad interpretation,
often reflecting local decision-making
traditions and case management
efficiencies that can impact on thereintegration progress.
16. Reducing Revocations
Technical revocations (those not based ona criminal conviction, charge or absconding
from the parole jurisdiction) may provide
a source for additional reintegration gain.
There has been little study of decisionmaking processes and no technicalrevocation guidelines could be developed tosupport field staff; and a better
understanding of the process and corporate
guidelines, particularly that support
alternatives to revocation submissions may
offer additional reintegration gains.
Clearly, the number of reintegration
levers presented offer mechanisms for
reductions in incarceration days. Within
this context, the aforementioned levers canalso contribute substantially to theintegrity of custody, care, control and safe
reintegration practices and the success ofprison population management.
Prison Population Management Crime Reduction ThroughEffective Treatment
Research reviews on adult correctional
treatment have found that correctional
treatment is effective in reducing criminal
recidivism. Recent studies on offender
treatment have yielded overall average
reductions of 10% in recidivism among
treated offenders (Lozel, 1996). However,with appropriate interventions the results
are more impressive - around 30%

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
reduction in recidivism (Gendreau &Goggin, 1996). Meta-analyses of adult andjuvenile correctional interventions
demonstrate that juvenile interventions
are more effective than those designed for
adults (Gaes, Flanigan, Motiuk & Stewart,1999). While education, vocational training
and prison labor programs were found tohave modest effects on reducing criminal
recidivism, they increased positive
behavior in prison. Notwithstanding,studies on behavioral/cognitive treatments,
on average, have produced larger effects
of reducing recidivism than othertreatments, Gendreau, Goggin, Cullen, andAndrews (2000) have noted that when it
comes to reducing offender recidivism, thebest approach is appropriate cognitivebehavioral treatments that embody known
principles of effective intervention.
For reporting on crime reduction as aresult of effective correctional treatment,
the change and reduction in recidivism iscalculated for program completers,
participants and dropouts. The change andreduction (reported as the difference inrecidivism rate over the comparison group- raises the overall magnitude of the effect)
in recidivism is measured relative to eithera matched comparison group, control group(sometimes waiting list controls) and or
general base rate for a similarly situatedcorrectional population. Accredited
programs offered by the Correctional
Service of Canada based on sound theory
and research with therapeutic integrity
report reductions in recidivism of 20% to80% (CSC, 2000).
In sum, it is possible to manage prison
population size through offender
reintegration and crime reduction througheffective treatment.
B. Delivering Effective CommunityBased Corrections
Among the various factors that influence

public safety, there is considerable evidence
that incarceration alone shows no successas a method of rehabilitating offenders.
Without other forms of intervention which
directly address criminal behavior andattempt to instill new patterns of behavior,prison on its own lacks promise. A major
review of accumulated findings (Andrews,
Zinger, Hoge, Bonta, Gendreau, & Cullen,1990) provides clear evidence of theimpotency of criminal sanctions whenunaccompanied by appropriate
rehabilitative programming.
More recently, Gendreau et al. (2000)
examined over 103 comparisons ofoffenders who were either sent to prison
for brief periods or received a communitybased sanction. Basically, they found no
deterrent effect from prison, but actually
an increase in recidivism. The results ofanother meta-analytic review by Losel(1996) reports rehabilitation programmingthat takes place in prison settings is lesseffective than programming which occurs
in the community. Consequently, theevidence suggests that better correctional
outcomes can be obtained in thecommunity.
There is also solid evidence supporting
the premise that the gradual andstructured release of offenders is the safest
and most effective strategy for theprotection of society against new offences.
Post-release recidivism studies (Waller,
1974; Harman & Hann, 1986) have foundthat the percentage of safe returns to thecommunity is higher for supervised
offenders than those released with nosupervision. Therefore, offender
reintegration is seen as working to better
prepare offenders for release and providingthem with greater support once they arein the community. Reintegration efforts
should yield dividends in terms of higher
rates of safe return to the community andlower rates of criminal recidivism.

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The public is concerned with who andhow offenders are managed in thecommunity, particularly those who are
violent or repeat, because those providing
supervision services are seen as being
responsible for their safety. The fact
remains most incarcerated offenders
eventually return to the community andthe majority of sentenced offenders are
given non-custodial sentences. In fact,
nearly four-fifths of offenders being
managed by North American correctional
authorities are in the community.
The best way, then, to serve the public
is to recognize the risk presented by anindividual, and to then put to good use thetools, the training and a fundamental
understanding of what it really means tomanage offender risk.
Risk Management Principles
Effective risk management incorrections implies that decisions are madeusing the best procedures available, andare in keeping with the overall goals of thesystem. For correctional service providers,the application of risk management
principles to reducing the chance ofcriminal recidivism is all that is required
to develop an effective risk management
program (or to improve on an alreadyexisting one). These risk management
principles (Motiuk, 1995) include:
1) the assessment of risk;
2) t h e s h a r i n g o f i n f o r m a t i o n(communication);
3) t h e m o n i t o r i n g o f a c t i v i t i e s(evaluation); and4) if deemed appropriate, an intervention(incapacitation, programming).
Public safety is improved wheneverthese risk management activities areintegrated into every function and level ofthe correctional system providing care andcontrol.

254

Assessment Methods
In practice, the analysis of offender risk
serves to structure many of the decisions
made with respect to supervision
requirements and program placement. The
key to risk assessment is to be able to makedecisions after having considered all of theavailable information. However, thecapacity to conduct formalized risk
assessments is directly related to theamount of resources a correctional agency
has at its disposal.
Andrews, Bonta, and Hoge (1990) havepresented a number of principles to aid in
the classification of offenders to promote
effective rehabilitation. These include the“risk”, “need”, “responsivity” and“professional override” or discretion. The“risk” principle proposes that the more
intensive correctional interventions are
best applied with higher risk offenders(those who have a higher probability for
negative correctional outcomes) while lessintensive interventions should be reserved
for lower risk offenders. The “need”
principle proposes that when offenderneeds are targeted well and interventions
applied to meet those needs, then weshould expect a reduction in the amount ofrecidivism. The “responsivity” principle
proposes that an offender’s learning styleshould be matched with the appropriate
method of service delivery. Finally, the“professional override” principle assertsthat after having considered “risk”, “need”
and “responsivity”, case workers exercise
judgment in treating a particular offender.
Previous research by Motiuk andPorporino (1989) on the predictive value ofcommunity-based offender risk
assessments found that:1) criminal history factors are strongly
related to community supervisionoutcome;2) a consistent relationship exists
between the type and number of needs

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
that offenders present (unemployment,
substance abuse) and the likelihood of
their re-offending and, mostimportantly,3) the combined assessment of the levelof both risk and needs significantly
improves our ability to predict who islikely to re-offend and who will.
Static risk factors refer to criminal
history background such number andvariety of criminal convictions, breaches oftrust (escape, breach of probation) and
exposure/response to the criminal justicesystem (previous probation and/or
incarceration, placement in disciplinary
segregation). Dynamic risk factors referto case needs or criminogenic needs thatare capable of reflecting change in an
individual (Andrews et al., 1990). This isa critical component of not only offenderrisk assessment, but also of risk
management because this is whereintervention takes place.
Little can be done about static factors(e.g., criminal record or criminal history).
There is, however, considerable predictive
power in those variables. While criminal
history should not be ignored, you cannot
do much to change those variables; this iswhere dynamic risk factors come in. These
dynamic risk factors (or case needs) areconsidered to be a sub-set of overall risk.
The goal is to effectively target these factors
and apply appropriate interventions tohave an impact on the likelihood of acriminal future.
Using this conceptual framework is very
helpful for community corrections as it isallows one to vary frequency of contact,
level of supervision or amount of service tobe delivered if people do change. It is also
helpful, as there is a mechanism todemonstrate that an offender has changed.
This situation has resulted in a conceptual
shift in community-based corrections

towards a thorough examination of
offender needs as a set of dynamic risk
factors, thereby allowing some flexibility
in service delivery.
As part of the standards for community
supervision (Correctional Service ofCanada/National Parole Board), parole
officers are required to use a systematic
approach to assess the needs of offenders,
their risk of re-offending and any otherfactors which might affect successful
reintegration to the community. In keepingwith this standard, a ‘Community
Intervention Scale’ (formerly called theCommunity Risk/Needs Management
Scale) is used to capture case-specificinformation on ‘criminal history’ and acritical set of ‘needs’ for classification(employment, marital/family relations,associates/social interaction, substanceabuse, community functioning, personal/
emotional orientation, and attitude) whileon conditional release (Motiuk, 1997).
The Community Intervention Scale issystematically administered and readministered to all offenders undercommunity supervision by case managers
across Canada. It provides an efficientsystem for recording criminal history risk
and case needs, level of risk and need,required frequency of contact, and related
background information on each offender(i.e., release status, warrant expiry). More
importantly, the Community Intervention
Scale assists community staff in managing
sex offender risk. For example, the processof suspension of conditional release that
may or may not lead to a revocation is one
possible measure that can be used to assurethat the level of risk is acceptable.
To sum, this dynamic assessment
method serves to instruct communitybased service providers with important
information. More specifically, with whomthey are dealing, what they are like, what255

RESOURCE MATERIAL SERIES No. 57
kinds of problems they faced out in thecommunity before they became in conflictwith the law, and what kind of problems
they experience while under supervision.
Such information can also help direct
limited resources to particular segments ofthe population under community
supervision to reduce risk.
Supervision Standards
Standards in community-based
corrections usually affirm many traditional
community supervision practices. They
also transform correctional services into
publicly acknowledged performance
criteria. For example, community
supervision standards might include thefollowing: Agency Mission Statement andServices, Basic Policy Information,
Information Sharing, Officer Selection,
Training, and Workload, Case Planning,
Case Conferencing and Documentation,
Initial and Ongoing Contact with the
Offender and Others in The Community,
Violation and Suspension, Police Liaison,
24 Hour Availability, Agency Policies,
Volunteers who provide supervision
services, Offender Files, and Community
Services and Resources (CSC, 1989).

much better than those who had not.
Secondly, community offices managed bythose who had established clear
operational standards, routinely monitored
work, and rejected substandard
performance showed the mostimprovement. Finally, community offices
whose field staff coordinated their efforts
towards achieving standards performancereceived the highest ratings.
Correctional plans determine the how,what and why of community supervision.
It is important to ensure that the plan isrelevant to the individual’s criminality,
specific and understood by them, feasible,
decent, humane, and legal. The releaseplan should focus upon: 1) reviewing
dynamic risk factors and criminal patterns,2) addressing concerns of the releasing
authorities, 3) establishing short and longterm goals and objectives of supervision,and 4) reviewing treatment programs,
resources and supervision techniques.

For community-based corrections, theaforementioned standards introduce
standardized methods of risk assessment
and case planning, promote uniform
decision-making, and clearly define areasof discretion. Luciani (1994) found thatcompliance with standards are vital topreserving the integrity of supervision andpromoting a professional ethic.

Finally, a critical source of control andassistance resides in the quality of theinterpersonal relationship between theoffender and other involved workers in thecommunity (Andrews, 1995). Morespecifically, the style and mode ofcommunication is very important in thecontext of supervision, particularly interms of interaction with different types ofcases. For example, chronically depressedindividuals may not respond well to highly
confrontational exchanges. Other specificresponsivity considerations encompass
gender, age, intelligence and ethnicity.

Focused research on compliance with
community supervision standards has
found from audit exercises a number ofkeys to success (Luciani, 1994). First andforemost, those community offices withentrenched supervision practices thatwould survive an audit exercise (as opposedto achieving immediate compliance) fared

W h e n a n o f f e n d e r ’s r i s k t o t h ecommunity is increased, the monitoring
and assistance functions of supervision canbe enhanced through disciplinaryinterviews and increased frequency ofcontact. Under certain conditions, when
the increased risk level of the offender is
no longer manageable, a suspension may

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be in order (Motiuk & Brown, 1993). Thesesituations include undue risk of a breach
and/or re-offending; a breach of special or
additional conditions (i.e., curfews, not toassociate, abstain, etc.); and inability toassess risk because of failure to report.
In sum, careful attention to dynamic risk
assessment or problem identification andmonitoring are the keys to successfulcommunity-based supervision andintervention. A good community
supervision plan will include elements
aimed at avoiding high-risk situations (i.e.,social patterns, locale, drug use) andbuilding in added social support forcompliance and active participation in theplan.
C. Treating Drug-related andFemale Offenders
Fueled by public concerns for community
safety and demands for new measures toallay those concerns, the internationalcorrections community is being challenged
to respond with conceptual andmethodological advances in treatment for
special offender groups. Althoughjurisdictions may vary in the risk/needprofiles of their offenders and the
proportion of special groups in theirrespective correctional population, there
may be sufficient range in these groups tosuggest developing differentiatedtreatment strategies. The United Nations
Asian and Far East Institute (2000)
requested that this paper address issues
related to treating drug-related and female
offenders.
Drug-related Offenders
In North America, alcohol and drug
abuse affects millions of people. Surveys
on the prevalence of substance use
disorders estimate that around 14% of
adults have experienced Alcohol
Dependence at some time in their lives,with approximately 7% having had

Dependence in the last year. Due to thevariety of drugs that could be included inlarge-scale surveys on Drug Dependence,
reliable estimates of prevalence are
difficult to obtain. However, it is believedthat the prevalence of drug abuse is on thesame scale as alcohol abuse.
Surveys of correctional populations findthat significant proportions have substanceabuse problems. Consistently, studies ofprison samples show more than two-thirds
evidence some degree of substance abuseproblems. Recently, the Canadian Centre
for Justice Statistics conducted a census
of prisoners in all adult correctional
facilities across Canada. Althoughsubstance abuse was the highest need area
identified among Provincial/Territorial
prisoners (less than 2 years), it was higher
for federal inmates. In addition, substanceabuse problems (such as intoxication,
trafficking and importation) among theprison population was the most frequently
identified security concern.
The high prevalence of drug abuse
among criminal offenders indicates astrong association between substanceabuse and various types of crime (Dowden& Brown, 1998). Alcohol is suspected ofcontributing to the loss of ability to control
aggressive behavior. Some illicit drugs
such as cocaine may elicit paranoid
thoughts that lead to aggressive acts.
Furthermore, obtaining the money topurchase drugs often involves criminal
activity. Although the particular nature of
the association is not clear, substance abusehas been found to be associated with violent
acts among adults and young offenders.
Substance abuse has been especially
implicated in murders. Moreover,substance abuse is a well-establishedpredictor of recidivism among sexual
offenders and mentally disordered
offenders.

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RESOURCE MATERIAL SERIES No. 57
In relation to treatment, there is strong
empirical support for the assertion that
effective treatment of drug abuse reduces
crime (Andrews & Bonta, 1998). Average
reductions in recidivism of 30% have beenreported in effectiveness studies of drug
abuse and appropriate treatment. A recent
outcome evaluation of Correctional Serviceof Canada’s substance abuse programs in1999 found a 31% reduction in newconvictions for 2,432 federal offenders whocompleted the Offender Substance Abuse
Pre-release Program.

intervention.
A recent review of the literature (Serin,2000) would reveal that there are six
essential components of an effective drug
abuse program for offenders. These include
the following: 1) assessment, 2) pretreatment motivational analysis, 3) formal
treatment, 4) relapse prevention, 5)maintenance and 6) evaluation.

Drug-related offender subgroups havedifferent risk/need profiles and are mostly
comprised of property, assaultive androbbery offenders in correctional systems.
Antisocial associates, relationship to theoffender and circumstance regarding theircontact have been found to be very
important dynamic risk factors to consider
for drug-related offenders. For the mostpart, drug-related offenders present anelevated risk for re-offence.

Assessment. Identifying the range andseverity of treatment needs, conducting
client selection for a program; doing afunctional analysis of use of alcohol anddrugs and their relation to criminality;
determining the role of alcohol and drugs
in the offenders’ use of violence, identifying
treatment goals (abstinence or self-control/
moderation); matching offender to program
alternatives; conducting pre/posttreatment assessments of needs,
knowledge and skills; and finally, doing
follow-up re-assessments during
maintenance phase.

However, there are a number of risk
factors that are not unique to drug-related
offenders but which are associated with reoffence: previous offenses, substance abuse,criminal associates, and antisocial
attitudes. Risk factors unique to drugrelated offenders include: early age of
onset, family supervision/affection,scholastic/vocational maladjustment, andself-control.

Pre-treatment motivational analysis.
Assessing prior treatment experience andperformance (not just for drug abuse);developing a motivational strategy
consistent with needs or stage of readiness;considering obstacles to successful program
completion; establishing support system for
maintaining treatment gains; andconsidering the role of therapeuticcommunities in facilitating treatment.

Drug Abuse Programs for Offenders
Offenders with drug abuse problems
differ in terms of: the etiology of the abuse,presentation of the problem, its specificrelation to criminality, and their responseto treatment (Lightfoot, 1995).
Fundamental to effective intervention is
the matching of offenders to the mostappropriate intervention, although higher
risk offenders with greater severity ofabuse typically require more intensive

Formal treatment. Using accepted adultlearning strategies, addressing treatment
needs as identified in assessment phase;
focusing on knowledge and skill acquisition
using various procedures, incorporatingteaching aids and presenting materials at
the appropriate level; and consideringgroup and individual sessions to enhancetreatment performance.

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Treatment targets for substance abuse

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
programs typically include most or all of
the following: (from the Correctional
Service Canada’s Offender Substance
Abuse Pre-release Program manual)orientation, alcohol and drug education,
self-management training, social skills
training, job skills, leisure and lifestyle,pre-release planning, and relapse
prevention.
Relapse prevention. Identifying offense
cycle and markers for relapse; consideringresilience factors and skill acquisition
regarding Relapse Prevention; practicing
coping with high risk situations ofincreasing difficulty; and establishing aplan for maintaining treatment goals.
Maintenance. Identifying and developing
support systems to maintain treatment
gains; considering treatment boosters tomaintain gain; establishing continuity ofcare in release planning; and determining
the role of special conditions such as
urinalysis and post-release intervention.
Evaluation. Establishing intermediate
measures of treatment gain (reduced levelsof substance use while incarcerated, fewer
institutional misconducts related to drug
abuse); calculating change scores for each
offender on knowledge and skills relating
to treatment targets; rating offenders’performance in the program; gatheringsatisfaction ratings (offenders, unit staff,
nursing, correctional staff, parole officer,
psychology); following up on drop-outs andrefusals in evaluation of effectiveness;finding out the impact of other treatment
program involvement; and comparing witha control group or cohort.
Female Offenders
Female offender subgroups also havedifferent risk/need profiles with property,
drug and sex trade offenders most common
in correctional systems (Motiuk, 1999).
The social context, relationship to female

offender and circumstance regarding theircontact are very important to consider. For
the most part, female offenders present thelowest risk for re-offence.
There are a number of risk factors thatare not unique to female offenders but
which are associated with re-offence:previous offenses, substance abuse, family
breakdown, marital problems, education/
employment difficulties, and criminal
associates. Risk factors unique to female
offenders include: histories of trauma,
victimization, parenting responsibilities,
physical and mental health problems, andpoverty.
Clinical measures of capacity for
relatedness and connection are importantin determining treatment responsivity ofa female offender (Bloom, 1999). In
keeping with general principles of effective
treatment it remains important to matchrisk/need profiles to intervention intensity
levels (Andrews & Dowden, 1999).
Offenses committed by females are notusually impulsive acts. Consequently,
gender responsive programming for female
offenders should be delivered in a womancentered environment that is safe, trustingand supportive (Stableforth, 1999).
Women-centered Programs
Current assessment and classification
paradigms are composites orreformulations of what is known aboutvariables pertaining to female offender risk
and need (Motiuk & Blanchette, 1998).
Comprehensive evaluation strategies forfemale offenders are paramount for
appropriate security placement,prescribing treatment, and risk
management. There is growing evidence
that the objective assessment instruments
used in Canadian corrections are bothreliable and valid for female offenders(Motiuk & Nafekh, 1999). While current
assessment tools appear to be accurate in

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identifying static and dynamic variables forfemale offenders, there is room for
improvement.
Dowden and Blanchette (1999) foundthat drug abusing female offenders tend to:start their criminal careers at an earlier
age; have previous adult court experience;possess histories of breaches of trust(escape, unlawfully at large) andplacements in disciplinary segregation; beclassified as high need; and experience
difficulties in associates/social interaction,
attitudes, employment, and marital/family
relations. Their research also suggests that
substance abuse problems are not unidimensional and interact with a numberof criminogenic need areas. Clearly,
reliable differences exist between female
offender substance abusers and nonabusers in a variety of areas. Examples ofwomen-centered programs offered by theCorrectional Service of Canada include:
Mother-child program (children (0 - 12)
visitation or full- and part-time residency
program); Anger and Emotions
Management; Women’s Substance Abuse
Program (a substance abuse program thatmeets the needs of women); Empowerment
Group for Women; Anti-fraud; Anticriminal Thinking; Cognitive Skills
Training (to think in non-criminal ways);
Canine Program (introduces women to thebasics of dog grooming and training);
Native Sisterhood (provides support to
Native and Non-Native women in Native
culture, particularly in relation to Native
craft and livelihood skills); Parenting Skills
Program (a short general education
program); Survivors of Abuse and Trauma
Programming (education/ awareness;
intensive group therapy, post-programsupport); Peer Support (intensive training
women inmates to provide emotional
support to their peers); and Dialectical
Behavior Therapy (a cognitive behavioral
treatment program for borderline
personality disorder).

260

CONCLUSION
Corrections has always been about
people, not just numbers. State-of-the-art
offender assessment tools, treatment
programs, and practice guidelines orstandards are helpful. But unless anorganization’s people, at all levels, arecommitted to both effective and efficientcorrectional service delivery (custody, care,
control and safe reintegration), andsupportive of various initiatives, within
their respective jurisdictions, corrections
will be unable to move forward into the
future.
REFERENCES
Andrews, D.A. (1995). The psychology ofcriminal conduct and effective treatment.
In J. McGuire (Ed.) What Works? Reducing
Reoffending. (pp.35-62). New York: Wiley.
Andrews, D.A., & Bonta, J. (1998). The
psychology of criminal conduct. Second
Edition. Cincinnati: Anderson.
Andrews, D.A., Bonta, J. & Hoge, R.D.
(1990). Classification for effective
rehabilitation: Rediscovering psychology,
Criminal Justice and Behavior, 17, 19-52.
Andrews, D.A. & Dowden, C. (1999). A
meta-analytic investigation into effective
correctional intervention for female
offenders. Forum on Corrections Research,
11(3), 18-21.
Andrews, D.A., Zinger, I., Hoge, R.D.,
Bonta, J., Gendreau, P., & Cullen, F. (1990).
Does correctional treatment work? Aclinically relevant and psychologicallyinformed meta-analysis. Criminology, 28,
369-404.
Bloom, B. (1999). Gender-responsive
programming for women offender: Guiding
principles and practices. Forum on
Corrections Research, 11(3), 22-27.

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Boland, F., Henderson, K., & Baker, J.
(1998). Substance abuse assessment
review. Forum on Corrections Research,
10(3), 32-34.
Corrections Population Growth. (1997).
First report on progress for Federal/
Provincial/Territorial Ministers responsible
for justice. Fredricton, New Brunswick.
Correctional Service Canada (2000). The
safe return of offenders to the community.
(April 2000). Research Branch, CSC.
Dowden, C, & Blanchette, K. (1999). An
investigation into the characteristics ofsubstance abusing women offenders: Risk,
need and post-release outcome. Report No.
81. Research Branch, Correctional Serviceof Canada.
Dowden, C., & Brown, S. (1998). Substanceabuse. Forum on Corrections Research,
10(3), 28-31.
Gaes, G., Flanigan, T., Motiuk, L.L., &Stewart, L. (1999). Adult correctional
treatment. In Prisons. (M. Tonry & J.
Petersilia, Eds). Chicago: University of
Chicago Press.
Gendreau, P., & Goggin, C. (1996).
Principles of effective correctional
programming. Forum on Corrections
Research, 8(3), 38-41.
Gendreau, P., Goggin, C., Cullen, F.T., &Andrews, D.A. (2000). The effects ofcommunity sanctions and incarceratioon
on recidivism. Forum on Corrections
Research, 12(2), 10-13.
Harman, W.G., & Hann, R.G. (1986).
Predicting general release risk forpenitentiary inmates. User report.
Ministry of the Solicitor General of Canada,
No. 1986-32.

Lightfoot, L.O. (1995). Assessment andtreatment of substance abuse in offenders:
Practice guidelines for correctional
psychologists. In Leis, T.A., Motiuk, L.L.,& Ogloff, J.R. (Eds.). Forensic Psychology:
Policy and Practice in Corrections. Ottawa:
Correctional Service Canada.
Lozel, F. (1996). Effective correctional
programming: What empirical researchtells us and what it doesn’t. Forum on
Corrections Research, 8(3), 33-37.
Luciani, F. (1994). Conditional releasesupervision standards revisited: An
examination of compliance in Ontario
Region. Forum on Corrections Research,
6(3), 26-29.
Motiuk, L.L. (1995). Refocusing the role ofpsychology in risk management:
Assessment, communication, monitoringand intervention. In Leis, T.A., Motiuk,
L.L., & Ogloff, J.R. (Eds.). Forensic
Psychology: Policy and Practice inCorrections. Ottawa: Correctional Service
Canada.
Motiuk, L.L. (1997). The Community Risk/
Needs Management Scale: An effective
supervision tools. Forum on Corrections
Research, 9(1), 8-12.
Motiuk, L.L., (1998). 16 levers for
reintegration. A published paper presented
at the National Parole Board - Correctional
service of Canada Retreat. Waskesiu,
Saskatchewan.
Motiuk, L.L. (1999). Special offender risk/needs groups: Youthful offenders, female
offenders and foreign nationals. A
published paper presented at theInternational Roundtable on Corrections.
Oslo, Norway.
Motiuk, L.L., & Blanchette, K. (1998).
What works: Assessments for women. A

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published paper presented at theInternational Community Corrections
Association 6th Annual Research
Conference. Arlington, Virginia.
Motiuk, L.L., & Brown, S. (1993). The
validity of offender needs identification andanalysis in community corrections. Report
No. 34. Research and Statistics Branch,
Correctional Service of Canada.
Motiuk, L.L., & Nafekh, M. (1999).
Reintegration potential profiles forfederally sentenced women. Forum on
Corrections Research, 11(3): 13-17.
Motiuk, L.L., & Porporino, F. (1989). Field
tests of the Community Risk/Needs
Management Scale: A study of offenders on
caseload. Report No. 6. Research andStatistics Branch, Correctional Service
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Motiuk, L.L., and Serin, R. (1998).
Situating risk assessment in thereintegration potential framework. Forumon Corrections Research, 10(1): 19-22.
Motiuk, L.L., and Serin, R. (2000). A
compendium on “what works” in offender
programming. Forum on Corrections
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Roberts, J. (1993). Risk management: The
views of the public and the challenges tocorrections. Forum on Corrections
Research, 5(2), 19-21.
Stableforth, N.L. (1999). Effective
corrections for women offender. Forum on
Corrections Research, 11(3), 3-5.
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Thurber, A. (1998). Understanding offender
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Waller, I. (1974). Men Released from
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Walmsley, R. (1999). World Prison
Population List. Home Office Research,
Development and Statistics Directorate.

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VISITING EXPERTS’ PAPERS

CURRENT ISSUES IN CORRECTIONAL TREATMENT AND
EFFECTIVE COUNTERMEASURES: TRANSFER OFSENTENCED PERSONS
Candido Cunha*
Sovereignty limits the space of those
who fight crime
Both the theory and the practice of State
sovereignty have always prevented thearms of the judge, as those of thepoliceman1, from stretching any farther
than the border of other countries.
Indeed, States are all the more eager toassert their privilege of sovereignty inrespect of criminal matters that the rightto punish is a right that States jealously
keeps to themselves alone. Moreover,criminal law expresses certainly therequirements of a given society, notnecessarily universal concerns.
There is in principle no question forState A to allow State B to exercise, within
the territory of State A, the right of State
B to punish. Otherwise the sovereignty ofState A might be questioned. Adding tothat there is the assumption that thevalues with reference to which State B
would exercise its right to punish may
differ from the values pursued under thecriminal law of State A.
Nothing limits the space of criminals
Crime however knows no borders, inthat borders do not confine crime, not evendo they deter crime. Quite on the contrary,borders attract crime to the extent thatthey hinder the action of all those whose
task it is to control crime. Borders also
produce crime in the sense that whatever
it is that they seek to separate often is*

Head of Division, Council of Europe
1 References in the masculine gender are intended
to include both genders.

matched with a demand to bring together.
Often, the action of bringing together again
amounts to crime or is easier done, or donein a more profitable way, by resorting tocrime.
Human relations have crossed the wallsof the family home to go beyond the bushesof the village, the limits of the county andthe borders of the state: we are in thisglobal village all in contact with each other.
Most of us all now share the net, Coca-Colaand Champagne, drive Toyotas, fly
Boeings, work for a multinational company
or organisation. In particular, the global
economy has brought men and women fromall over the world to be in contact eachother, often to visit each other. It wasdifferent with our grand-parents.
Therefore, the chances are high thatcrime committed today has aninternational dimension; the chances areeven higher that crime committed
tomorrow will have an international
dimension.
How to deal with transborder crime
Because national judges and policemen
cannot act beyond their respective borders,States have since early civilisations2 agreed
on methods of inter-state co-operation incriminal matters, designed to overcomethat difficulty.

2

Cherif Bassiouni (cf. International Extradition:
United States Law and Practice, Oceana, New York
1999) mentions the Egyptian, Chinese, Chaldean
and Assyro-Babylonian civilisations)263

RESOURCE MATERIAL SERIES No. 57
The simplest and most common method
is that of mutual legal assistance. The
underlying philosophy of mutual assistanceis that, to the extent that State A may notcarry out action in State B, State B carries
out action on behalf and at the request ofState A, for purposes relating toproceedings pending in State A. State B
acts in lieu of State A. Mutual assistance
may also consist in State B authorising
State A to carry out action on its territory.
Because there is virtually no limit towhat may be requested under the bannerof mutual assistance, all other methods ofinter-state co-operation should beconsidered. Traditionally however manymethods of co-operation are autonomously
identifiable and indeed separately
regulated both in domestic andinternational law.
The oldest method is extradition. It is
the surrender of a person by State A to
State B, at the request of State B, where
the person is being proceeded against inState B or is wanted by State B for the
carrying out of a sentence. Extradition
applies when the person wanted is in one
state while the person’s criminal file is in
another State.
The classical approach to extradition is
the following. Firstly States accept to
extradite a person for the sake ofreciprocity. Where reciprocity is notguaranteed, extradition is not possible.
Secondly, extradition is only granted tothe extent that the person concerned is nota person protected by the State to which
extradition is requested. Thus nationalsof that State are usually not extraditable.
Nor are persons otherwise protected, suchas refugees.
Thirdly, extradition is not granted when
the interests at stake, beyond the criminal

264

nature of the case, are closely linked to thesovereignty of the State requesting
extradition. Thus, tax matters, military
matters and political offences are usually
not extraditable.
Lastly, where the consequences ofextradition might shock fundamental
values of the State to which extradition isrequested, it is usually refused. The
circumstance that death penalty may be
applied is for many countries one such
example.
A simplified method of extradition has
developed these last years. It applies tocases in which the person concerned
consents to his extradition.
When the person wanted is in one state
and the person’s criminal file is in anotherState, instead of transferring the person
by way of extradition, it may be possible totransfer the file. Where the file takes theshape of proceedings, that is called transfer
of proceedings in criminal matters. It
applies in particular where extradition is
not an option. It also applies, regardlessof whether extradition is or is not an option,
where the interests of justice so require,for example where evidence or important
evidence is to be found in the country where
the person is, not in the country where thefile is.
An extension of the concept of transfer
of proceedings allows a state not only totransfer the proceedings but also totransfer the person concerned along withthe proceedings. One is no longer in asituation where the file is in one country
and the person in another. The situationis one where both the file and the person
are in the same country although there arereasons to transfer both to another country.
Such reasons may have to do with theavailability of evidence or with thecircumstance that different persons are

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
being prosecuted for the same acts indifferent countries and justice would betterbe served by trying them together in thesame courtroom.
Where the file is transferred in the shapeof a final sentence, that is calledinternational validity (or recognition) of
criminal judgments. Such a method allows
State A to recognise and enforce a criminal
judgment passed by a court of State B. It
applies in particular where the sentenced
person is in one state and the sentence waspassed in another state. However it may
also apply in a situation where the person
is in the same state where the sentence waspassed although there are reasons totransfer both to another country. Suchreasons may have to do with better chances
for the rehabilitation of the person
concerned, for example, where the person
is a national of the other state.
An extension of that latter form ofinternational validity of criminal
judgments may allow a state to transfer
both the person and the sentence under asimplified procedure. That is called
transfer of sentenced persons. I am going
to concentrate on that method ofinternational co-operation in criminal
matters.
Transfer of sentenced persons
Foreign detainees
In many countries - certainly in most
European countries - the number of foreign
inmates is disproportionately high whencompared with the total number ofinmates. That is not because human beings
have some special propensity for offending
when they move beyond the borders of theirnative community, as if social control
dropped when people are amidst foreigners.
In the fringes there may be a little of that.
For the main bulk of the offences, thereasons are elsewhere.

I mentioned above that the chances arehigh that crime committed today has aninternational dimension. Adding to this
there is the fact that offences of trafficking,especially drug trafficking, are amongst themost intensively investigated and heavily
punished. Indeed they account for a highnumber of foreign detainees. And of course
there is the circumstance that nonnationals are less likely than nationals tobenefit from such measures as bail andconditional release, because of thesuspicion that they might easily takerefuge in their native country, i.e. abroad.
Foreign prisoners frequently encounterparticular difficulties on account of suchfactors as different language, culture,
customs and religion. If they do notunderstand the language of the country ofdetention they may not be able tocommunicate with staff and other inmatesand may not have access to information andreading material, and thus risk being
excluded from participating in the prison’s
activities and facilities. Imprisonment in
a foreign environment poses additional
problems, especially if customs and food are
unfamiliar or incompatible with theprisoner ’s religious precepts. All thisproduces alienation and isolation which isincreased by the fact that foreign prisoners
will have difficulty in maintaining contact
with family, friends and others in theircountry of origin; visits are rare or nonexistent. In addition, lack of a common
language will impair communication withthose persons and agencies responsible forassisting the prisoner in his resocialisation.
As a result, the foreign prisoner’s chancesof social resettlement are greatly reduced.
At the same time, the problems ofcommunication with foreign prisoners andthe necessity to take account of their
special needs and problems place anadditional burden on prison
administrations: they must seek to provide

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interpretation and translation, to makespecial arrangements for prison visits andother contacts with the outside world, toadjust educational and professional
training facilities, to observe special dietaryrequirements - to mention but a few of the
problems posed by the detention offoreigners.
Under such circumstances the purposesof imprisonment are partially impaired.
The nationality of the offender has no
incidence on objectives such as to keep theoffender away from society, to prevent himfrom offending again, to defend the society
against him, to show that society reacts tocrime, or to ensure that serious crime does
not remain unpunished. However, theobjective of resocialising or resettling or
rehabilitating the offender, is highly
impaired by the circumstance that theoffender is not a member of that
community, in particular where he is analien.
It follows that, all else being equal, thesame sanction is harsher when imposed ona foreign prisoner than it would otherwise
be if applied to a national. There is anelement of justice that requires being taken
into consideration when the prisoner is nota national.
And it also follows that the burden put
on the prison administration is heavier
with respect to foreign prisoners thatnationals. A heavier burden means extra
expenses which, in an environment where
resources are limited, usually will becompensated by bringing down the level of
expenditure elsewhere in the system withobvious disadvantages to the system as awhole.
The need therefore is there, on different
accounts, to reduce the number of foreignprisoners. One way of achieving that result
is to transfer.

266

THE CONVENTION ON THE
TRANSFER OF SENTENCEDPERSONSHistorical background
The Convention of the Transfer ofSentenced Persons, drawn up within theCouncil of Europe by a committee ofgovernmental experts under the authorityof the European Committee on Crime
Problems (CDPC), was opened forsignature on 21 March 1983.
At their 11th Conference (Copenhagen,21 and 22 June 1978), the European
Ministers of Justice discussed the problems
posed by prisoners of foreign nationality,
including the question of providing
procedures for their transfer so that they
may serve their sentence in their homecountry. The discussion resulted in the
adoption of a Resolution (No. 1), by which
the Committee of Ministers of the Councilof Europe was invited to ask the European
Committee on Crime Problems (CDPC),
inter alia, “to consider the possibility ofdrawing up a model agreement providing
for a simple procedure for the transfer ofprisoners which could be used between
member states or by member states in theirrelations with non-member states”.
Following that initiative, a SelectCommittee of Experts on Foreign Nationals
in Prison was set up in June 1979.
The committee’s principal tasks were to
study the problems relating to thetreatment of foreigners in prison and to
consider the possibility of drawing up amodel agreement providing for a simple
procedure for the transfer of foreignprisoners. With regard to the latter aspect,at its own request, the Select Committee
was authorised to prepare a multilateralconvention rather than a model agreement,
provided it would not conflict with theprovisions of existing European
conventions.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The Select Committee was composed ofexperts from fifteen Council of Europe
member states (Austria, Belgium,
Denmark, France, Germany, Greece, Italy,
Luxembourg, Netherlands, Portugal,
Spain, Sweden, Switzerland, Turkey,
United Kingdom). Canada and the UnitedStates of America as well as theCommonwealth Secretariat and theInternational Penal and PenitentiaryFoundation were represented by observers.
The Convention on the Transfer ofSentenced Persons of 21 March 1983 is an
example of European legal co-operation
which has been extended well beyond
Europe. 45 States are a Party to theConvention, 37 of them European and 8
non-European. Its purpose is to provide a
procedure under which a person serving aprison sentence in a country of which he is
not a national may be transferred to thecountry of his nationality in order to serve
there the remainder of the sentence.
The draft was finalised in May 1982 andforwarded to the Committee of Ministers
that approved it in September 1982 anddecided to open it for signature on 21 March
1983.
General considerations
The purpose of the Convention is tofacilitate the transfer of foreign prisoners
to their home countries by providing aprocedure which is simple as well as
expeditious. In that respect it is intended
to complement the European Convention
on the International Validity of Criminal
Judgments of 28 May 1970 which, althoughallowing for the transfer of prisoners,
presents two major shortcomings: it has,so far, been ratified by only a small numberof States, and the procedure it provides is
not conducive to being applied in such a
way as to ensure the rapid transfer offoreign prisoners.

With a view to overcoming the lastmentioned difficulty, due to the inevitableadministrative complexities of an
instrument as comprehensive and detailed
as the European Convention on theInternational Validity of Criminal
Judgments, the Convention on the Transfer
of Sentenced Persons seeks to provide a
simple, speedy and flexible mechanism forthe repatriation of prisoners.
In facilitating the transfer of foreignprisoners, the convention takes account ofmodern trends in crime and crime policy.
In Europe, improved means of transportand communication have led to a greater
mobility of persons and, in consequence, toincreased internationalisation of crime. As
penal policy has come to lay greater
emphasis upon the social rehabilitation of
offenders, it may be of paramountimportance that the sanction imposed on
the offender is enforced in his home country
rather than in the State where the offence
was committed and the judgment rendered.
This policy is also rooted in humanitarianconsiderations: difficulties incommunication by reason of language
barriers, alienation from local culture andcustoms, and the absence of contacts withrelatives may have detrimental effects on
the foreign prisoner. The repatriation ofsentenced persons may therefore be in thebest interests of the prisoners as well as of
the governments concerned.
Unlike the other conventions on
international co-operation in criminal
matters prepared within the framework of
the Council of Europe, the Convention on
the Transfer of Sentenced Persons does notcarry the word “European” in its title. This
reflects the draftsmen’s opinion that the
instrument should be open also todemocratic States outside Europe. Twosuch states — Canada and the UnitedStates of America — were, in fact,
represented on the Select Committee by

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RESOURCE MATERIAL SERIES No. 57
observers and actively associated with theelaboration of the text.
Presently, the Convention is in force withrespect to 45 States, 8 of which are nonmember States.
The convention distinguishes itself infour respects:
With a view to facilitating the rapidtransfer of foreign prisoners, it provides fora simplified procedure which, in its
practical application, is likely to be lesscumbersome than that laid down in theEuropean Convention on the International
Validity of Criminal Judgments.
A transfer may be requested not only by
the State in which the sentence was
imposed (“sentencing state”), but also by
the state of which the sentenced person isa national (“administering state”), thus
enabling the latter to seek the repatriationof its own nationals.
The transfer is subject to the sentenced
person’s consent. Thus, for all practical
purposes, the Convention operates on thebasis of a threefold consent, namely, thesentencing State, the administering Stateand the person concerned.
The Convention confines itself toproviding the procedural framework fortransfers. It does not contain an obligation
on Contracting States to comply with arequest for transfer; for that reason, it was
not necessary to list any grounds forrefusal, nor to require the requested state
to give reasons for its refusal to agree to arequested transfer.
Its objectives according to the preambleare (a) further the ends of justice and (b)contribute to the social rehabilitation ofsentenced persons.

268

The question has been raised of how toestablish priorities between the two
objectives stated in the Preamble if andwhen such objectives enter into conflictwith one another.
In this respect it has been recognisedthat the ends of justice, including theenforcement of the sentence, are a major
aim of the Convention. The latter therefore
does not authorise action designed toobviate or by-pass the execution of thesentence. Indeed, upon agreeing to atransfer, administering States undertake
to execute the sentence, either by way ofcontinuing enforcement, or by way of
conversion.
Difficulties may arise where there isgreat discrepancy between the actual
length of the prison term that thetransferee, should he not be transferred,
would have to serve in the sentencing Stateand the actual length of the prison termthat the transferee, should he betransferred, would have to serve in theadministering State.
Where there is great discrepancy, someStates tend to consider that, should theperson be transferred under suchconditions, the ends of justice are notserved.
It has also been recognised that thesocial rehabilitation of sentenced persons
is equally a major aim of the Convention.
This aim can better be served by allowing
sentenced foreign persons to serve theirsentence within their own society, i.e. bytransferring them.

The two aforementioned aims of theConvention are placed on the same footingin the Preamble. In technical terms, there
is no gradation of importance or priority
between them. It follows that both

115TH INTERNATIONAL TRAINING COURSE
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objectives must be pursued compatiblywith one another.
However, whilst the ends of justice may
be achieved regardless of the Convention,
rehabilitation of foreign detainees canbetter be achieved through the Convention.
The objective of rehabilitation is the “raisond’être” of the Convention.
Furthermore, the Convention has ahumanitarian dimension. Indeed, bringing
foreign detainees back home amounts to
reducing their hardship to the same level
as that of national detainees, by way ofgiving them the same chance that the latteralready have, i.e. “to serve their sentences
within their own society”.
In principle, the objective of
rehabilitation is served in all cases oftransfer; the objective relating to the aimsof justice might, in the view of some States,
not be entirely served in all cases. Hence,the situation where States may have toponder between either (a) serving
rehabilitation while not entirely fulfillingthe ends of justice, or (b) not serving
rehabilitation while ensuring thefulfilment of the ends of justice.
Whilst recognising that the balance
between the two terms is not even, onemust accept that there is no
straightforward answer to the dilemma.
Only on a case by case basis, depending on
the particular circumstances of each case,will it be possible to decide one way or theother.
Scope
The definition of “sentence” makes clearthat the convention applies only to apunishment or measure imposed by a courtof law, which involves deprivation of liberty,
and only to the extent that it does so,regardless of whether the person concerned
is already serving his sentence or not.

Article 9.4 provides that any State whichcannot avail itself of one of the proceduresreferred to in that Article to enforce
measures imposed in the territory of
another Party on persons who for reasonsof mental condition have been held not
criminally responsible for the commissionof the offence, and which is prepared toreceive such persons for further treatment
may, by way of a declaration addressed to
the Secretary General of the Council ofEurope, indicate the procedures it will
follow in such cases.
That Article implicitly extends the scopeof the Convention to persons who forreasons of mental condition have been held
not criminally responsible for thecommission of the offence.
Due however to the variety of proceduralways of dealing with such persons, itremains to be confirmed whether all theParties to the Convention are in a position
both to transfer out and transfer inmentally disturbed offenders.
Ways and means ought to be found totransfer such persons to their countries oforigin. Indeed, it makes no sense to keepthem in a country where little can be madeto take proper care of them. Their transfer,
however, should take place under formal
arrangements that take due care of:- the interests of the person concerned,
who probably cannot give his or her
consent;- the need to ensure that the society into
which the person is being transferredis properly protected against him orher;- the need to ensure that the person does
not move on, uncontrolled, to anothercountry, including the country fromwhich he or she was transferred out.
General principle
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governed by the general principle thatstates shall afford each other “the widest
measure of co-operation in respect of thetransfer of sentenced persons”. This isintended to emphasise the convention’s
underlying philosophy: that it is desirable
to enforce sentences in the home countryof the person concerned.
Although Parties are in no way underan obligation to proceed to any requested
transfer, they must examine in all goodfaith, with respect to each such request,
whether transfer is not an option.
The right of initiative
Transfers may be requested by either thesentencing state or the administering state.
Thus the Convention acknowledges theinterest which the prisoner’s home country
may have in his repatriation.
Although the sentenced person may notformally apply for his transfer, he may
express his interest in being transferredunder the Convention, and he may do soby addressing himself either to thesentencing state or the administering state.
Seven conditions for transfer(1) Nationality
The first condition is that the person to
be transferred is a national of theadministering state.
In an effort to render the application of
the convention as easy as possible, thereference to the sentenced person’s
nationality was preferred to including in
the convention other notions which, in theirpractical application, might give rise to
problems of interpretation as, for instance,
the terms “ordinarily resident in the otherstate” and “the state of origin”
Contracting States may, however, define,by means of a declaration, the term
“national”. And indeed many have defined270

that term in such a way as to include
persons having their permanent residence
in their territory.
It should be pointed out that any State
may define the term national for the
purposes of this Convention only as far as
it is concerned (Article 3.4). That meansthat each State may describe which persons
it wishes to come under the category of its
own nationals. Such a definition is relevant
where the state concerned is theadministering state, not the sentencing
state. No state is authorised to define thecategory of nationals of any other given
state. It is important to note this because
an analysis of the declarations entered bysome states shows that they haveinterpreted the provisions of Article 3.4 ina different way.
One consequence of this is that dual
nationality should not prevent a personfrom being transferred from the country of
one of its nationalities to the country of theother nationality.
The question may be raised of re-transfer
to a third State, as follows. A person thathas two nationalities, after having beentransferred to one of the countries of his
nationality, may request to be retransferred to the other country of his
nationality. The question is whether aperson transferred under the Convention
may be re-transferred to a third State and,if so, under which conditions.
In this respect the following observations
are relevant. The Convention must not be
used as if it were a travel agency. However,
it is the primary purpose of the Convention
to facilitate the rehabilitation of thesentenced person and, thus, re-transfer
must not be ruled out. Re-transfer should
require the agreement of (1) the person
concerned, (2) the sentencing State, (3) the
first (or intermediate) administering State

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
and (4) the second (or final) administeringState. The question of who may take theinitiative is irrelevant in practical terms.
(2) Final and enforceable judgment
The second condition is that the
judgment must be final and enforceable.
This means that all available remedies
must have been exhausted or the time-limit
for lodging a remedy must have expired
without the parties having availed
themselves of it. This does not preclude
the possibility of a later review of thejudgment in the light of fresh evidence, as
provided for under Article 13.
(3) Length of sentence
The third condition concerns the lengthof the sentence still to be served. For theconvention to be applicable, the sentence
must be of a duration of at least six months
at the time of receipt of the request fortransfer, or be indeterminate.
(4) Consent of person concerned
The fourth condition is that the transfer
must be consented to by the person
concerned.
This requirement constitutes one of thebasic elements of the transfer mechanism
set up by the convention. It was noted
above that the simplified procedureprovided by this Convention is possible only
because the person concerned consents toit.
Where in view of the age or physical ormental condition of the person concerned,
one of the two states considers it necessary,the consent of the sentenced person’s legal
representative is required in lieu of thesentenced person’s consent.
While the requirement for consent is laid
down in Article 3.1.d, the rules applicable
to consent are laid down in Article 7.

The sentencing State must ensure thatthe person required to consent to thetransfer - either the sentenced person or
his representative, as appropriate - does
so voluntarily and with full knowledge ofthe legal consequences which the transfer
would entail for the sentenced person.
The procedure for giving consent isgoverned by the law of the sentencing state.
The sentencing State shall afford an
opportunity to the administering State toverify through a consul or other official
agreed upon with that state, that theconsent is given in accordance with theconditions set out in the Convention.
A document certifying the consent of theperson concerned must be forwarded by thesentencing state to the administering state.
The circumstance that consent isrequired led the drafters to consider it notnecessary to lay down a rule of speciality.
It results that any person transferredunder the convention may be proceededagainst or sentenced or detained for an
offence other than that relating to theenforcement for which the transfer has
been effected. That information must ofcourse be included in the information on
the substance of the convention which is
to be given to sentenced persons.
(5) Dual criminality
The fifth condition is intended to ensurecompliance with the principle of dual
criminal liability.
The condition is fulfilled if the act whichgave rise to the judgment in the sentencing
state would have been punishable ifcommitted in the administering state andif the person who performed the act could,
under the law3 of the administering state,
have had a sanction imposed on him.

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The basic idea is that the essential
constituent elements of the offence shouldbe punishable in the administering State.
An interesting question has been raisedin Norway. A Norwegian citizen applied to
be transferred to Norway to serve asentence imposed on him in another state.
He claimed that he had been provoked by
the police into performing the illegal act
for which he was sentenced. Suchprovocative methods by the police are
accepted and legal in the sentencing state;
however, they may not substantiate aconviction in Norway. Thus, the Directorof Public Prosecution concluded that, had
the act been committed in Norway, no
punishment could have been imposed. The
Norwegian authorities thus rejected theapplication for transfer. However, internal
Norwegian procedures under the Public
Administration Act allow for an appeal. On
appeal, it was found that the conditions in
Article 3(1)(e) had been met and, therefore,transfer was finally granted.
In reaching conclusions in the appeal,emphasis was put on the aims of theConvention, as stated in the Preamble andin Article 2.
Once transferred, the person claimed
that he was illegally detained in Norway
because the act for which the sentence was
imposed, does not constitute a criminal
offence in Norway.
The first question here is whether the
expression <<double criminality>> should
be interpreted as double criminality inconcreto or double criminality in abstracto.
Most experts are in favour of dual
criminality being assessed in concreto.
3

Unless where it results otherwise from the context,
the word “law” is always used to mean both enacted
law and common and customary law.

272

Dual criminality should mean : (a) looking
at the law of both countries, as it applies,
or as it would apply, to the concrete
circumstances of the case, and (b) assessing
whether there is sufficient overlap in viewof the effect sought. In fact, once the person
concerned - not a hypothetical person in ahypothetical case - is transferred, there
must not be any legal impediment, inparticular of a constitutional nature, thatwould prevent the administering state fromexecuting the sentence passed by the otherstate. In most states individuals areprotected against deprivation of liberty bystrict rules of a constitutional nature thatcannot be overruled, for example, by theprovisions of this Convention. It follows
that the Convention would be prevented
from operating should double criminality
in concreto not apply.
One must however be careful inestablishing the limits of such a concept.
Indeed it cannot be interpreted to meanthat in both states concerned the law
provides likewise in respect of thecircumstances of the case. Sufficient
overlap was used above to mean thefollowing. The facts for which the person
was sentenced, under the circumstances inwhich they occurred, including thecircumstances relating to the persons
involved, should they have come under thelaw of the administering state, would havecarried a criminal sanction.
In the case under review, it should berecalled that Article 7.1 requires that theperson requested to give consent to thetransfer does so voluntarily and with fullknowledge of the legal consequences
thereof. Such a consent must therefore beseen to carry with it the acceptance of theeffects of transfer in the administering
state.
One must have in mind that theConvention operates in particular on the

115TH INTERNATIONAL TRAINING COURSE
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basis of respect for a legitimate interest of
the sentencing state in that the sentence
be served. Such an interest cannot be
frustrated by allowing for the sentence tobe challenged in the administering state.
The possibility must therefore not be
considered of giving transferred persons
the right to challenge the effects of transfer
in the administering State.
Moreover, it would be circumventing theprovisions of Article 13 (i.e.: “Thesentencing State alone shall have the rightto decide on any application for review of
the judgment.”) to give transferred persons
the right to apply to the administering state
for a direct or indirect review of thejudgment.
Because the world in not perfect, it canalways happen that it is not before theactual transfer of the person that it
becomes apparent, or that it is found, thatthe dual criminality requirement was nomet. In such circumstances, the remedy
could not be to free the person, but rather
to annul the transfer and return the
person.
(6)Agreement of the sentencing state
The sixth condition is the agreement of
the sentencing state.
(7)Agreement of the administering state
The seventh condition is the agreementof the administering state.
In the view of certain experts, theConvention is too rigid and in that way
inadequate to cope with present-day needs.
It is not flexible in the sense that requests
are either to be totally granted or totally
rejected. It does not provide a mechanism
for ad hoc arrangements that may take careof the particularities of each case. Because
the Convention does not preclude ad hoc
arrangements, more should be done inorder to facilitate such arrangements.

Others however think that theConvention should not be used as an
instrument under which ad hoc
arrangements may be agreed upon,
according to which the States involved
would follow a course of action opposite tothat which is foreseen under theConvention. They question whether ad hoc
arrangements are consistent with the spiritof the Convention. Is it not one of the
purposes of any Convention to close
negotiations as to how to deal with a given
category of situations? Should it now
become routine practice to discuss fromscratch the terms under which sentenced
persons are transferred, then theConvention would become purposeless.
Obligation to furnish information
The Convention provides for an
obligation to furnish information at four
different levels. Firstly, the sentencing
state must inform the sentenced person on
the substance of the convention, provided
of course that the sentenced person may
be eligible for transfer under theconvention (Article 4.1). In order tofacilitate that information, the Council ofEurope has prepared a standard text withall the information deemed to be necessary
at that level. The Secretariat of the Councilof Europe invites all states that become aParty to the Convention to translate thattext into their own language or languages,
adding if appropriate any other relevant
information. The translated version is thendistributed to all the other states. It
becomes then possible to any state toprovide to any person eligible to transfer
under the convention relevant informationin that person’s language.
Secondly, once the sentenced person has
expressed an interest in being transferred,
information between the two statesconcerned is required. (Article 4,paragraphs 2, 3 and 4)

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Thirdly, the sentenced person shall be
informed, in writing, of any action taken
by one state or the other, as well as of any
decision taken by either state on a request
for transfer.
Fourthly, Article 15 of the Convention
provides for the administering state to
inform the sentencing state on the state ofenforcement:
a. when it considers enforcement of thesentence to have been completed;b. if the sentenced person has escapedfrom custody before enforcement of
the sentence has been completed; orc. if the sentencing State requests a
special report.
Requests and replies
Requests, replies and supporting
documents are dealt with under Articles 5
and 6 of the convention. They must be inwriting and should follow channels ofcommunication determined beforehand.
Article 6.2.(a) of the Convention provides
that the sentencing state must provide theadministering state i.e. with a certified
copy of the judgment. However, in somecases the full facts on which the sentence
is based are not apparent from the text ofjudgement. That is the case for example
with judgements on appeal. A
comprehensive statement of the facts is inany case necessary for the administeringState to ascertain double criminality. And
indeed Article 4.3.(c) requires thesentencing State to forward to theadministering State a statement of thefacts upon which the sentence was based.
In order to increase efficiency and savetime, states should, when providing copies
of judgements that do not contain a fulldescription of the facts, also forward a
separate statement to that effect.
Where a translation of the judgment is274

required by the administering state, andthe original sentence is long and/or
complicated, as a general rule translationof select extracts of the judgment, or asummary thereof, should suffice. Where
and when the administering state deems
necessary to have more information thanthat contained in the translated extractsof the judgment, it may of course so requestfrom the sentencing state.
All the information that is necessary inorder to carry on speedily with theprocedures should promptly be madeavailable in order to avoid unnecessary
delays. In particular, the “penal” situationof the person concerned (duration ofremand in custody, how long he has served
the sentence, any credit of time due to somespecial reason, etc) must be clearly spelt
out in the documents.
Effects of transfer for sentencing state
Article 8 provides that transfer shallhave the effect of suspending theenforcement of the sentence in thesentencing state. As from the point in timein which the administering State considers
enforcement of the sentence to have been
completed, the sentencing state may nolonger enforce the sentence.
It results from the wording of this Article
that the Convention does not prevent thesentencing State to resume enforcement of
the sentence after transfer in so far as
enforcement will not have been completed.
Such would be the case, for example, where
the transferred person escapes from theadministering state and ends up being
recaptured in the sentencing state.
This Article aims at preventing transferfrom leading to the same person being
punished twice for the same facts (ne bis
in idem).

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Effect of transfer for administering state
According to Article 9, the administering
state may choose between two ways ofenforcing the sentence. It may either:

Rule common to both alternatives
In both cases, the enforcement isgoverned by the law of the administering
state.

-

continue the enforcement immediately
or through a court or administrative
order; in that case, the administering
state continues to enforce the sanction
imposed in the sentencing state,possibly adapted;-

or convert the sentence, through a
judicial or administrative procedure,
into a decision which substitutes asanction prescribed by its own law for
the sanction imposed in the sentencing
state; the sanction is converted into asanction of the administering state,with the result that the sentence
enforced is no longer directly based on
the sanction imposed in the sentencing
state.

Continued enforcement
Where the administering state opts forthe “continued enforcement” procedure, it
continues to enforce the sentence imposedin the sentencing State, as if it had been
imposed in the administering state. In
particular, it is bound by the legal nature
as well as the duration of the sentence as
determined by the sentencing state.

The alternatives are respectively called“continued enforcement” and “conversionof sentence”.
It must be underlined that, under Article
3.3, States may enter a formal declaration
excluding one or the other of these methods
in their relations with other Parties. Suchdeclarations have as a result, not only thatthe state having made the declaration
chooses once and for all the alternative that
it will follow, but also that that state will
not transfer any person to any state that
follows the barred alternative.
In fact only two states, namely France
and Italy, have entered declarations thatcan be interpreted to mean that. Other
States have invoked Article 3.3 to makedeclarations to the effect of announcing
beforehand the alternative of their choice
where they act in the capacity ofadministering states.

The “legal nature” of the sentence refers
to the kind of sanction imposed, as it isdefined under the law of the sentencing
state.
The administering State is neverthelessallowed to “adapt” the original sentence.
In practice that will prove necessary inmost cases. Indeed, the “legal nature” ofsanctions available is often not exactly thesame in any two countries. For example,
in most countries imprisonment breaks
down into a diversity of sanctions involving
deprivation of liberty, known by different
names that cannot be translated. Thus
“adaptation” is often necessary on suchgrounds in order to reach the nearest
equivalent available in order to make thesentence enforceable.
Adaptation of the original sentence may
also be necessary in order to ensure that it
does not exceed the maximum prescribedby the law of the administering state.
Moreover, the administering state isusually faced with the need to prescribe
some kind of legal procedure leading to adecision that fixes the amount of time —duration of sentence — that remains to beserved, taking into account the time served
and any remission earned in the sentencing
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RESOURCE MATERIAL SERIES No. 57
any period of deprivation of liberty alreadyserved by the sentenced person must be
deducted from the sentence to be continued
in the administering state.
The administering state thus continues
to enforce the sentence imposed in thesentencing state, but it does so inaccordance with the requirements of its
own penal system.
Conversion of sentence
The conversion of the sentence to be
enforced is the judicial or administrative
procedure by which the sanction imposedin the sentencing state is replaced by asanction prescribed by the law of theadministering state.
Procedures of this kind, for example incivil matters, are often called exequatur
procedures. The name should probably be
avoided in this case because of thefundamental difference between
procedures under this Convention which
are based on the consent of the person
concerned and any legal procedure allowing
for the coercive enforcement of a foreign
judgment.

circumstance that the person was found to
be a recidivist in the sentencing state is, oris not, a binding “fact” in the meaning of
Article 11.1.a of the Convention. In otherterms, the question is whether or not the
court entrusted with converting thesentence in the administering state isbound by the circumstance that the person
was a recidivist in the sentencing state.
It might be said on this count that the
court in the administering state is boundby the findings of the court in thesentencing state, including its findings
with respect to the criminal record of thesentenced person. It may not, for example,
based on the fact that the person has aclean criminal record in the administering
state, find that the person is not a recidivist
and thus disregard the findings in thisrespect of the court in the sentencing state.
However, it does not follow that the courtin the administering state is bound to draw
any legal consequences from the findingthat the person is a recidivist.
S e c o n d l y, a s a n c t i o n i n v o l v i n g
deprivation of liberty may not be converted
into a pecuniary sanction.

The conversion of the sentence isgoverned by the law of the administering
state. However, four conditions are to beobserved by the administering state.

Thirdly, any period of deprivation ofliberty already served by the sentenced
person must be deducted from the sentence
as converted by the administering state.

Firstly, the administering state is boundby the findings as to the facts insofar as
they appear - explicitly or implicitly - fromthe judgment pronounced in the sentencing
state.

Fourthly, the penal position of thesentenced person must not be aggravated.

This requirement may lend itself todifficulties. For example, sentences
imposed are often aggravated because thecourt takes into consideration thecircumstance that the person is a recidivist.
Once the person is transferred, thequestion might be raised of whether the276This latter condition must be interpretedwith care because there is usually a great
variety of factors that contribute to defining
the penal position of the person concerned,
such as the duration of the sentence,
requirements for remission, prison regime,
etc. It is often delicate to establish a fairbalance between such factors in order toreach an overall assessment.

115TH INTERNATIONAL TRAINING COURSE
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Pardon, amnesty, commutation
The administering state alone is
responsible for the enforcement of thesentence, including any decisions related
to it, such as any decision to suspend thesentence. However, according to Article 12,
pardon, amnesty or commutation of thesentence may be granted by either thesentencing or the administering state, in
accordance with their respective laws.
Review of judgment
The condition that the judgment mustbe final and enforceable does not preclude
the possibility of a later review of thejudgment in the light of fresh evidence. In
such cases, the sentencing state alone has
the right to take decisions on applications
for review of the judgment.
This raises a difficulty because both theinterests of justice and the interests of theperson concerned require the personal
appearance of the person concerned before
the court that reviews his judgment. That
court, according to Article 13, sits in thesentencing state while the person sits in a
prison in the administering state.
The Convention makes no provision for
the transfer-back of the person. At the timeof preparation of the Additional Protocol
to the Convention, the question was
discussed of whether it should not beproper to include provisions designed tocover such a situation. However, theconclusion was that the solution should befound within the framework ofarrangements on mutual assistance
between the states concerned.
In fact, with respect to states that are a
Party to the European Convention on
Mutual Assistance in Criminal Matters,
the issue is being solved by including in a
Protocol to that Convention, presently
being prepared, provisions on the personal
appearance of transferred sentenced

persons
Such provisions will render applicableto such persons the provisions of Articles
11 and 12 of that Convention, on the
personal appearance of persons in custodyfor purposes of being heard.
Termination of enforcement
Article 14 concerns the termination of
enforcement by the administering state incases where the sentence ceases to be
enforceable as a result of any decision ormeasure taken by the sentencing state (e.g.
the decisions referred to in Articles 12 and13). In such cases, the administering statemust terminate enforcement as soon as it
is informed by the sentencing state of any
such decision or measure.
Transit
Article 16 imposes an obligation on
Contracting states to grant requests fortransit, in accordance with their nationallaw, where the transfer in question has
been agreed upon by two other Contracting
States.
Languages
The Convention privileges the languagesof the countries involved, as well as theofficial languages of the Council of Europe
which are French and English. However,
the rules applicable change withcircumstances.
In this respect, the Convention provides
for the communication of information and/or documents on three different sets ofcircumstances, namely:(a) at a preliminary stage where theperson has expressed an interest in
being transferred (Article 4,paragraphs 2 to 4);(b) requests for transfer, replies andsupporting documents (Article 5 andArticle 6, paragraphs 1 and 2);(c) information and documents asked by

277

RESOURCE MATERIAL SERIES No. 57
either state before any request fortransfer is made (Article 6.3).

question above should be found within theConvention.

Article 17 deals with the question of
languages to be used. It distinguishes
between the situations described above
under (a) and (b) and makes provision for
languages to be used in one case as in theother.

There appears to be no reason for
considering that declarations made under
Article 17.3 - which in fact have the purposeof derogating from the rule laid down in
Article 17.2-should apply to any
information and/or documents other than“requests for transfer and supporting
documents”.

In the cases described under (a)information must be furnished in thelanguage of the Party to which it isaddressed or in one of the official languagesof the Council of Europe.
In the cases described under (b) the ruleis that no translation shall be required.
However, any State may, by way of adeclaration, require that requests fortransfer and supporting documents beaccompanied by a translation. The
requesting State has a choice between
translating into the other state’s own
language or into one of the official
languages of the Council of Europe or intosuch one of these languages that the otherstate will have indicated in its declaration.
However, Article 17 remains mute withregard to the situation described under (c).
No other article of the Convention makes
provision for languages to be used in thesituation described under (c).
Hence the question: which languages
may be used for the purposes of applying
Article 6.3 of the Convention, i.e. when aState provides information and/or
documents asked for by another State
before any of them having requested thetransfer of a sentenced person.
Firstly it should be recalled that several
articles of the Convention clearly indicatethat the latter applies even before a request
for transfer is made. Thus the reply to the

278

Which leaves us with the rule under
Article 17.1 and the rule under Article 17.2.
The first applies to information under
Article 4, paragraphs 2 to 4; the second
applies to requests for transfer andsupporting documents. None apply to“information and/or documents asked byeither State before any request for transfer
was made”.
One is thus led to investigate, for the
purposes of the Convention and bearing in
mind its operation, which of the twosituations (i.e. (a) above and (b) above) is
closest to “information and/or documents
asked by either State before any request
for transfer was made”.
Article 4 bears the title “obligation to
furnish information”. That has to do withan obligation imposed on both States toseek and furnish such information as may
be required so that each and all the three
actors are in a position where they may
decide either to agree or not with thetransfer.
The context of Article 4 leads to theconclusion that it was drafted having in
mind information and/or documents asked
by either State before any request fortransfer was made.
Conversely, no clear argument appears
that would allow to bring closer together“information and/or documents asked by

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
either State before any request for transfer
is made” and “requests for transfer, replies
and supporting documents”.
The conclusion therefore is that
information and/or documents asked,
under the provisions of Article 6, paragraph
3 of the Convention, by either State, before
any request for transfer is made, shouldbe transmitted in the language of the Party
to which it is addressed or in one of theofficial languages of the Council of Europe.
Costs
The main rule on costs is given in Article
17.5 that reads that <<any costs incurredin the application of this Convention shallbe borne by the administering State, except
costs incurred exclusively in the territoryof the sentencing State.>>.
This Article has been interpreted in thefollowing way.
Where the person is being delivered at acommon border, the sending State bears all
the costs incurred with transporting theperson to the border; and the receiving
State bears all the costs incurred as fromthat point onwards.
Where the person is carried by air, thesending State bears all the costs incurredwith transporting the person to the airportof departure; and the receiving State bears
all the costs incurred as from that point
onwards, including the price of the air fareand escort.
This means that - in principle - it wouldbe (examples) for the Australianauthorities to bear the costs incurred withtaking a prisoner from Tasmania to Sydney
and for the French authorities to take careof the air fare from Sydney to Paris, bothfor the prisoner and his escort.

States are often ready to go beyond theircommitments in order to speed up theprocedures or to overcome some technicalor other difficulty.
It may indeed be the case that - in someStates - the issue of costs plays a role inthe decision of whether to agree or not witha given transfer.
It is therefore advisable to remain open
in terms of internal regulations in thesematters.
The question may be raised of whether
the costs of transfer that the Convention
allots to the administering State (thereceiving end) may be, or ever are inpractice, devolved to the person concerned.
Thus, the following concerns only theadministering State.
Different countries have different
practices in this respect.
- one country may require persons whowish to be transferred to sign a“promissory note” with respect to costs,
then the government bears the costs
and then the government endeavours
to execute the promissory in order torecover the costs. Thus the question of
the actual transfer of the person isseparated from the question of thefinancial implications of the transfer;- in other countries, the person
concerned is not required to pay thecosts of transfer. However it is known
that, should the person wish to pay, thepace of the procedure will significantly
speed up;- the costs of transfer are as a generalrule borne by the State in a number ofcountries;
it may happen that the costs of transfer
are either borne by the State or
devolved to the person concerned,
depending on a case by case appraisal.

However, practice may be different since279

RESOURCE MATERIAL SERIES No. 57
It should be noted that where transfer
is made subject to the person paying thecosts, that will prevent many persons frombeing transferred and thus constitutes an
obstacle to the application of theConvention.
Moreover it is adiscriminatory practice.
In fact, it is often in the financial interestof the sentencing state to bear the costs oftransfer. The provisions of Article 17 of theConvention do not prevent States frommaking arrangements to that effect inbetween them.
Choice between extradition and transfer
Where a national of State A wassentenced and serves a sentence in State
B; and proceedings are pending in State A
against the same person for an offenceother than the offence for which he wassentenced in State B; and State A seeks thepresence of the person on its territory forinvestigation and trial; one might raise thequestion of whether State A has an option
between requesting the extradition of theperson and seeking that person’s transfer
under the Convention.
Under the above-mentioned
circumstances, State A does not have an
option between extradition and transfer
since the only legally appropriate
procedure in order to achieve its aim is
extradition; to obtain the transfer of theperson under the Convention in order toobtain a result that cannot be subsumed
under the aims of the Convention would
amount to abusing the transfer procedureand to achieve a disguised extradition.
It is a general principle of international
law that treaties must be executed in goodfaith. It follows that the application of atreaty for purposes other than the purposes
recognised by the treaty itself is contrary
to international law. And it may bechallenged unless all the parties concerned

280

explicitly or implicitly consent. Thus, thetransfer procedure can only be legitimately
used in order to try the person if all theinterested parties are well aware of what
is going on and consent to it. This also
applies to the person concerned because his
consent is a conventional requirement forthe operation of the Convention.
The same conclusion can be drawn fromanother ground. Indeed, the Convention
requires that, in giving his consent to histransfer, the person must have “fullknowledge of the legal consequences
thereof”. It follows that, should theadministering State abstain from revealing
to the person certain legal consequences,the person’s consent will not have been fully
knowledgeable.
Some, however, might follow a different,
more pragmatic, approach according towhich:- transfer procedures, because they arequicker and less burdensome thanextradition procedures, may be usedinstead of the latter;- it is legitimate to do so because theperson concerned is necessarily awareof its past behaviour in theadministering State and, when heconsents to transfer, he implicitly
consents to proceedings and trial for
past behaviour, regardless of whether
proceedings have already been initiatedor will be initiated in the future;- the requirement in Article 7 of theConvention concerns “legal”
consequences only, present and future,
meaning consequences resulting fromthe law, abstract as it is, not concreteconsequences.
The Additional Protocol to theConvention on the Transfer ofSentenced Persons
An Additional Protocol to the Convention
on the Transfer of Sentenced Persons was

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
opened for signature on 18 December 1997.
On 1 June 2000, it will enter into force inrespect of three States only (Estonia,
Poland and Macedonia). However fifteen
other States have signed it.
The purpose of the Additional Protocol
is to provide rules applicable to the transferof the execution of sentences in two
different cases, namely:(a) where a sentenced person has fled thesentencing State to go to the State of
his or her nationality, thus rendering
it impossible in most cases for thesentencing State to execute thesentence passed; and(b) where the sentenced person is subject
to expulsion or deportation as aconsequence of the sentence.
As with the mother Convention, theProtocol imposes no obligation on thesentencing State or the administeringState to agree to transfer. It sets theframework within which States involved
may co-operate, if they so wish, andprovides a procedure for this purpose.
Persons having fled from thesentencing StateIn this respect, the Protocol envisages asituation where a national of State A issentenced in State B and subsequently
leaves State B before or while serving thesentence and voluntarily enters State A.
It would apply most commonly to cases
where the sentenced person escapes fromlegal custody in the territory of thesentencing State and flees to the territoryof the State of his or her nationality,
seeking thereby to avoid the execution, orfull execution, of the sentence.
The mother Convention is of no use insuch situation because the sentenced
person is not present in the sentencing
State and is thus unavailable for transfer.
Nor can the problem in practice be dealt

with under existing forms of international
co-operation. For example, the normal
method of returning a fugitive from justice- extradition - is generally not available
because most countries do not extradite
their own nationals. Apart from this, theonly other option which may be available
at present is for the person to be prosecutedand sentenced afresh in State A for thesame facts - a process which is both
expensive and cumbersome. If neither
option is available, the consequence is thatthe person goes unpunished and thus theends of justice are frustrated.
It was recognised that the Convention
is to a great extent founded onhumanitarian principles and that, for thisreason, the consent of the person is an
integral element in it. But it was thoughtthat where the person has deliberatelysought to frustrate the judicial process byfleeing from justice, he or she has thereby
taken himself or herself outside the ambitof the Convention. Consequently, it wasconsidered that under such circumstances
the need for his consent was no longer
appropriate.
Article 2 of the Additional Protocol
provides that, upon a request from thesentencing State, the administering State
may, pending the arrival of documents
supporting the request, arrest the person
concerned on a provisional basis. The
maximum length of time for the provisionalarrest of the person concerned is however
not mentioned.
In normal circumstances, there should
be no great danger that the person might
abscond, because in any other third Statethe person is no longer protected against
extradition.
There is a sense of urgency in suchsituations, which is inherent to any
situation where a person is arrested on a

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RESOURCE MATERIAL SERIES No. 57
provisional basis. However, under thecircumstances described above, one mightrightly suggest that the person cannot
benefit from a presumption of innocence,but rather, on the contrary, that there is apresumption - based upon the declarationof a competent authority of the sentencing
State - that the person concerned is asentenced person whose sentence has not
yet been entirely served.
It follows that the sense of urgency
inherent to any situation where a person
is arrested on a provisional basis is lesspressing in the instant case that in othercases. In particular, it is less pressing thatin a situation where extradition isrequested.
One might therefore conclude that wherea limit is established for provisional arrest
under Article 2 of the Additional Protocol,that limit may go beyond the limit of 40days provided in Article 16 of the European
Convention on Extradition.
Sentenced persons subject to an
expulsion or deportation order
It does not serve the objective of
rehabilitation of the sentenced person tokeep such a person in the sentencing State
when it is likely that, once he or she hascompleted the sentence to be served, he or
she will no longer be permitted to remainin that State.
The situation here is one where theperson is subject to deportation or
expulsion as a consequence of the sentence.
Acknowledging that the Convention
operates on the basis of a three-foldconsent, i.e. the sentencing State, theadministering State and the sentenced
person, provision was nevertheless madefor the Convention to operate on the basisof a two-fold consent, namely the consent
of both the sentencing State and the282

administering State, where the person
concerned as a consequence of the sentencepassed is subject to deportation or
expulsion from the sentencing State.
Because transfer under the provisionsof this Article neither requires nor assumes
the sentenced person’s consent, the rights
and interests of the person should beotherwise protected. Hence the provisions
extending to such persons the benefit of theprinciple of speciality, as well as therequirement for the person’s opinion to be
examined and taken into account prior to
any decision being taken.
INFORMATION DOCUMENTSAVAILABLE
PC-OC / INF 1 *A Chart showing thestate of signatures andratifications of theCouncil of Europe
Conventions in the penal
field;
PC-OC / INF 2 *T h e f u l l t e x t o f t h eReservations andDeclarations entered by
States Party to those
Conventions*This information is available on theCouncil of Europe Internet site(http://
conventions.coe.int).
PC-OC / INF 3 A c o m p e n d i u m o f
Recommendations
adopted by theCommittee of Ministersof the Council of Europe
on the practicalapplication of those
Conventions;
PC-OC / INF 5 A guide to procedures on
the transfer of sentenced
persons in States Partyto ETS 112;

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
PC-OC / INF 6 T h e l i s t o f o f f i c i a l s
responsible for thepractical application ofConventions ETS 24(Extradition), ETS 30(Mutual Assistance) and
ETS 112 (Transfer ofSentenced Persons);[classified document]
PC-OC / INF 7 A c h a r t s h o w i n g
requirements of Stateswith respect to languages
used in requests received
under Conventions ETS
24 (Extradition), ETS 30(Mutual Assistance), ETS
11 2 ( Tr a n s f e r o f
Sentenced Persons), ETS
141 (Laundering)
PC-OC / INF 8 A list of bilateral treaties
on criminal matters
involving member States
PC-OC / INF 12 A standard text providing
information about
Convention ETS 112(Transfer of Sentenced
Persons), translated into
the national languages of
the Parties to theConvention
PC-OC / INF 14 FINLAND : International
Co-operation in the
Enforcement of Certain
Penal Sanctions Act (16January 1987/21) [Engl.
only]
PC-OC / INF 18 The Swedish system forinternational mutual
legal assistance
Le système suédois
d’entraide judiciaire
internationale

PC-OC / INF 19 Legal co-operation incriminal matters and therights of the defence Case-law of theEuropean Commission
and Court of Human
Rights
PC-OC / INF 20 SLOVAK REPUBLIC :Selected legal provisions
applicabletointernational legal cooperation in criminal
matters [Engl. only]

PC-OC / INF 23 ICELAND : Extraditionof Criminals and Other
Assistance in Criminal
Proceedings Act No 13 of
17 April 1984 [Engl.
only]
PC-OC / INF 26 H U N G A R Y: A c t o n
International Legal
Assistance in Criminal
Matters [Engl. only]
PC-OC / INF 30 I S R A E L : L a w o n
Transfer of Prisoners[Engl. only]
PC-OC / INF 32 USA: State Laws relating
to international prisonertransfer [Engl. only]
PC-OC / INF 33 COSTA RICA: Rules forthe application of theConvention on thetransfer of sentenced
persons
PC-OC / INF 35 ITALY: Case-law [Engl.
only]

283

RESOURCE MATERIAL SERIES No. 57

NOTES ON CRIME AND PUNISHMENT
IN SWEDEN AND SCANDINAVIA
Hanns von Hofer*
I. CRIME AND PUNISHMENT IN
SCANDINAVIA: AN OVERVIEW
Geographically, the Scandinavian
countries (here meaning Denmark,Finland, Norway and Sweden) lie on themargins of Europe, and with the exceptionof Denmark are rather sparsely populated,with a total population of around 24
million. All the countries bar Finland are
constitutional monarchies, and all are bothprotestant and very homogeneous in termsof culture. It wasn’t until a few decades
ago that the Nordic countries began to feelthe impact of immigration, this level being
highest in Sweden and lowest in Finland.
The standard of living in the Nordic
countries is among the highest in the world
and the region’s modern political history
has been shaped on the whole by theprinciples of social democracy.
Comparative research into levels of
welfare has shown that there is a rather
clear-cut pattern of national clusters in the
EU-member states of similarity in thewelfare mix, as well as the general
distributive outcome in material living
standards. The European Union appears
to be divided in three homogeneous clusters(Vogel, 1997):• a northern European cluster(including Denmark, Finland,
Norway [not a member of the EU])and Sweden exhibiting high levels ofsocial expenditure and labour market
participation and weak family ties.
In terms of income distribution this* Department of Criminology, Stockholm University,
Sweden284

cluster is characterised by relatively
low levels of income and classinequality, and low poverty rates, but
a high level inequality between theyounger and the older generations;• a southern European cluster(including Greece, Italy, Portugal andSpain) characterised by much lower
levels of welfare state provision andlower rates of employment, but bystrong traditional families. Here wefind higher levels of income and classinequality and of poverty, but low
levels of inter-generation inequality;• a central European cluster with anintermediate position (including
Austria, Belgium France, Germany,
Ireland, Luxembourg, theNetherlands and the UK). The UK
borders on the southern cluster interms of its high levels of income
i n e q u a l i t y, p o v e r t y a n d c l a s s
inequality.
Against this sketchy backdrop
reasonably simplistic descriptions of
traditional crime in the Nordic countries,
and these countries’ responses to crime, arepresented in the following.
1. International Crime Victims
Surveys (ICVS)
Because of variations in the rules
governing the collection and production of
statistics in different countries, it isgenerally accepted by experts thatcomparisons based on crime statistics do
not in principal allow for the possibility ofmaking cross-national level comparisons ofcrime (CoE, 1999b:13). For this reason,

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
when cross-national comparisons of crimelevels are considered desirable, theinternational crime victims surveys(Mayhew & Killias, 1990; Mayhew & van
Dijk, 1997) are a great help despite theobvious methodological difficulties whichface even these data sets. The data arecollected by means of telephone interviews(using standardised questions) based on
random samples of between 1,000 and
2,000 persons from each country. A totalof nineteen countries have participated in
the three surveys (1989, 1992 and 1996),
whilst of the Nordic countries, Norway took
part only in 1989, Sweden in 1992 and 1996
and Finland in all three. Denmark has notparticipated at all and must therefore be
excluded from the following presentation.
The offence types covered in the survey are:car theft, motorcycle theft, bicycle theft,
burglary and attempted burglary, robbery,
theft from the person, sex offences andassault/threatening behaviour.
Results from all the surveys between
1989 and 1996, irrespective of how manytimes the individual countries participated,have been summarised and are presented
in the table below.
Generally speaking, the level of criminal
victimisation is reported to be lower inFinland and Norway than in Sweden(however, the Norwegian data refer to 1989
only). For the most part, Sweden lies fairly
close to the European average. Similardifferences between the Nordic countries
were also found during the 1980s whencomparisons were carried out on resultsfrom national victims surveys produced inthese countries. At that point the resultsfrom Denmark were similar in many
respects to those in Sweden (RSÅ, 1990:146
ff). Sweden distinguishes herself (alongwith the Netherlands) with respect to thelevel of bicycle thefts, whilst the Nordic
countries on the whole present relatively
low levels of car vandalism, burglary androbbery. However, the Nordic countries
score higher on sex offences and high on
assaults/threatening behaviour. There has
been speculation that these differences
might in part be explained by higher levels

Table 1
Victimisation over the last year (percentage victim once or more),
1989, 1992 and 1996 according to the ICVS project.
Source: Mayhew & van Dijk (1997, Appendix 4, Table 1).
Car theft
Theft from car
Car vandalism
Motorcycle theft
Bicycle theft
Burglary
Attempted burglary
Robbery
Thefts of personal property
Sexual incidents
Assaults & threats
All eleven offence types
Number of completed interviews

DK
n.a.
n.a.
n.a.
n.a.
n.a.
n.a.
n.a.
n.a.
n.a.
n.a.
n.a.
n.a.
n.a.

FI
0.5
2.8
4.6
0.3
4.4
0.6
0.6
0.7
3.6
2.3
3.8
18.7
6544

NO
1.1
2.8
4.6
0.3
2.8
0.8
0.4
0.5
3.2
2.2
3.0
16.4
1009

SE
1.5
4.4
4.6
0.6
7.9
1.4
1.0
0.4
4.4
1.9
3.6
22.8
2707

EUR9
1.2
5.4
7.5
0.8
3.5
1.9
1.9
1.1
4.4
2.3
2.7
23.3
29903

n.a. = not available
FI (Finland): 1989,1992,1996; NO (Norway): 1989 only; SE (Sweden): 1992, 1996.
EUR9: Austria, Belgium, France, England & Wales, (West)Germany, Italy, Netherlands, Spain and Switzerland.

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RESOURCE MATERIAL SERIES No. 57
of awareness and lower levels of tolerance
among Scandinavian women when it comesto setting limits for the forms of intergender encounters that are consideredsocially acceptable (HEUNI, 1998:132 f,
163, 349, 432).
Additional data from cause of death
statistics regarding the mid-1990s indicate(CoE, 1999:43) that levels of homicide in
Denmark, Norway and Sweden are on apar with those reported in central Europe(around 1.2 per 100,000 of population),whilst Finland still presents considerably
higher frequencies (around 3.0 per 100,000
of population), which had already been
noted in the criminological literature of the
1930s (NCS, 1997:13).
According to various estimates(EMCDDA,1997: Table 5 & 1998: Table 4;
Reuband, 1998:332), national prevalence
rates of problem drug use appear to be near
average in Denmark and below average in
Norway, Finland and Sweden as comparedto central and southern Europe. An
account of the Nordic drug scene in the
1990s is given by Olsson et al. (1997).
The ICVS project surveys not only theextent of criminal victimisation but also
other related phenomena such as levels of
fear, crime-preventive measures, andattitudes towards and experiences of thepolice. Asked whether they felt they wereat risk of being burgled in the course of thefollowing year, respondents from Finlandand Sweden were ranked low (Mayhew &van Dijk, 1997:50). Asked how safe theyfelt outside in their own neighbourhood
after dark, feelings of insecurity were
lowest among respondents from Finlandand Sweden together with Switzerland(Mayhew & van Dijk, 1997:51). In responseto the question of whether they had
installed various kinds of anti break-in
devices (such as burglar alarms, special
locks, or bars on windows or doors) Finland

286

and Sweden also came out below theaverage (Mayhew & van Dijk, 1997:54).
2. Trends
Since there are no victims surveys (ateither the national or European level)
covering the post-war period, descriptionsof crime trends have to be based on recordsof crimes reported to the police. Despite
the well known shortcomings of official
crime statistics, the use of such statistics
to compare crime trends is an accepted
method (CoE, 1999b:13).
The number of crimes reported to thepolice has risen in all the Nordic countries
at least since the beginning of the 1960s.
The smallest increase is found in thenumber of reported incidents of homicide(the number of such reports has doubled,
except in Finland where they seem to haveremained at more or less the same level).
The largest increase (between seven andtwelve times) is to be found in the numberof reported robberies, this being partly due
to the fact that at the end of the 1950srobbery was more or less unheard of inthese countries, a total of only 1,200
robberies being registered in these four
Nordic countries in 1960 (NCS, 1997:72).
The increase is probably linked in part tothe upward trend in juvenile crime and inpart to the emergence of a group of sociallymarginalised males (NCS, 1997:31). It is
nonetheless worth noting that according to
the ICVS, robbery levels in Finland,
Norway and Sweden still remain low in aninternational perspective (see Table 1
supra). The reporting of other offence types(assault, rape and theft) has increased
between two and six times over the same
period. When the countries are ranked on
the basis of increases in five offence
categories (homicide, assault, rape, robbery
and theft), Sweden presents increases of
the greatest magnitude, whilst theincreases are least marked in Finland.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Crime trends in the Nordic countries areon the whole much the same as those foundin other central European countries.
Westfelt (1998) recently compared crime
trends in Scandinavia with those in Austria,
England & Wales, France, (West) Germany
and the Netherlands. He found that all
countries reported increases in crime, eventhough there were periodical local

differences. Figure 1 clearly shows thestriking similarity between the trend inregistered assault and theft offences in theNordic countries and that in the countriesof central Europe. The similarities in crime
trends have previously been noted by writers
such as Heidensohn & Farrel (1991), Eisner(1994), Killias (1995), Joutsen (1996), andMarshall (1996).

Figure 1a
Assault offence trends in the Nordic and some European countries,
1950(63)-1996. Scaled series, per 100,000 of population.
Source: Westfelt (1998; updated).
ASSAULT
8

6

4

2

0
1950

NORD4
EUR5
1960

1970

1980

1990

2000

EUR5 = Austria, England & Wales, France, (West) Germany and the Netherlands

Figure 1b
Theft offence trends in the Nordic and some European countries, 1950-1996.
Scaled series, per 100,000 of population.
Source: Westfelt (1998; updated).
5

THEFT

4

3

2

1

0
1950

NORD4
EUR5
1960

1970

1980

1990

2000

EUR5 = Austria, England & Wales, France, (West) Germany and the Netherlands

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RESOURCE MATERIAL SERIES No. 57
It has been suggested that theft trends
in the 1990s may be in the process ofchanging direction. Up to now, theobservations on which such statements are
based remain too few for us to be able tospeak with any degree of certainty particularly in light of the fact that we do
not have good theories available which
would be able to explain such a break incrime trends (cf. Steffensmeier & Harer,1999).
The trend in juvenile crime constitutes
a special case. The issue has recently beenstudied by Pfeiffer (1998) and Estrada(1998). According to Estrada, levels ofjuvenile crime (i.e. mostly against property)
increased in all ten of the European
countries studied (Denmark, Finland,
Norway, Sweden as well as Austria,
E n g l a n d , ( W e s t ) G e r m a n y, t h eNetherlands, Scotland, and Switzerland)
without exception in the decades following
the Second World War. In many of thesecountries this upward trend was broken
however, probably at some point between
the mid-1970s and the early 1980s.
Available statistics suggest that there
followed something of a levelling off. In
three countries, however, England, Finlandand Germany no such break is visible injuvenile crime trends, and the increases
have simply continued. The trends inlevels of violent offences committed byjuveniles differ somewhat from the generalcrime trend. Here virtually all thecountries present increases during the lastten - fifteen years (with the possible
exception of Finland and Scotland).
3. The Response to Crime and the
System of Sanctions
The number of police per 100,000 of
population is lower in the Nordic countries
than in either southern or central Europe(data for Germany are unavailable). In the
mid-1990s the Nordic countries reported a
total of 183 police per 100,000 of
population, whilst central Europe reported
291 (although the Netherlands were on apar with the Nordic countries) andsouthern Europe 395 (CoE, 1999b:78). As
is the case in other European countries,
however, the clear up rate has dropped
considerably over the years (see Figure 2).
Exactly how this drop ought to beinterpreted is not altogether clear: purely
as a fall in police efficiency, for example, or
as a result of increases in the number ofoffences which were always unlikely to becleared, or as a combination of such factors(cf. Balvig, 1985:12).

Figure 2
Clear up rates (all offences covered by respective penal codes) in Denmark,Finland, Norway and Sweden, 1950-1997 (every fifth year).
Source: NCS (1997, Table 9; updated).
100

Percentage

80

60

40
FI
NO
DK
SE

20

0
1950

288

1960

1970

1980

1990

2000

115TH INTERNATIONAL TRAINING COURSE
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The ICVS show that the level of publicsatisfaction with the police is mixed in
Finland and Sweden (data are unavailable
for Denmark and Norway). Sweden tops
the list as regards the extent to which
members of the public report crimes to thepolice (Mayhew & van Dijk, 1997:40).
Concerning the way persons reporting
crime feel the police have acted at the time
the crime was reported, Finland andSweden present a higher than average levelof satisfaction in comparison with the othercountries (Mayhew & van Dijk, 1997:44).
However, in the matter of how satisfied the
respondents were with the police ingeneral, confidence seems to be average in
Sweden and below average in Finland(Mayhew & van Dijk, 1997: 47).
The ICVS have also assessed attitudes
to the kind of sentences dealt out in respectof criminal offences. The respondents wereasked to choose which of a variety ofsanctions they felt to be most suitable fora 21 year old male having committed his
second burglary, stealing a colour television
set in the process. Given the choice
between fines, a prison sentence orcommunity service, just under 50 percentof the Swedish respondents chosecommunity service, 24 percent prison, andfourteen percent fines (Mayhew & van Dijk,
1997:56). The corresponding figures for
Finnish respondents were 47, 16 and 16
percent, and for the Norwegians 47, 14 and23 percent. The view in the Nordic
countries does not seem to deviate too muchfrom the European average, with the
exception of the English speaking nations,where prison sentences are advocated to agreater extent.
Shinkai & Zvekic (1999:120) claim thatpublic attitudes to punishment generally
conform to the actual sentencing options
available. This seems to hold true for theNordic countries, where fines and otherforms of sanction are most common andwhere prison sentences are employed lessfrequently. This is of course due primarily
to the fact that the large majority ofoffences which lead to convictions are of aless or moderately serious nature and thedemand for proportionality between crimeand punishment means that prison
sentences should be reserved for more
serious offences.
The following brief description of choicesof sanction concerns those imposed for all
offences against the penal code taken
together (NCS, 1997:78 ff). A more detailed
description looking at different offence
categories would not have been feasible
given the brevity of this overview. Since
the majority of offences committed against
the penal code are property offences of one
kind or another, the sanctions describedhere are in practise primarily those
imposed for theft offences and the like. The
figures refer to 1995. In the case of Norway,
the data had in part to be estimated since“misdemeanours” are not included in their
entirety in the Norwegian statistics (NOS,
1997: Table 40).
Finland convicts far more people thanthe other Nordic countries (1,238 per
100,000, as compared with 927 in
Denmark, 731 in Sweden and 544 in
Norway). Finland’s unique position may
be partially explained by the legalistic
approach characteristic of Finnish judicial
practise, with its rather strict observanceof mandatory prosecution (Joutsen, [1999])
and also, as has been intimated by Finnish
experts, by the fact that clear up rates havebeen consistently higher in Finland thanin the rest of Scandinavia.
In contrast to the other countries,
however, 81 percent of those convicted in
Finland receive fines (the corresponding
proportions in Denmark, Norway andSweden being 59, 53 and 43 percent
respectively). “Other sanctions” (excluding

289

RESOURCE MATERIAL SERIES No. 57
prison sentences) are used most often in
Sweden (42 percent as against 23 in
Denmark and Norway and eleven percent
in Finland). This very rough outline
nonetheless captures a number of theessential characteristics of the sanctioning
culture of the Nordic countries: Sweden
still appears as the country where thephilosophy of individual prevention, basedon a wide variety of sanctions, is mostpronounced, whilst Finland most clearly
follows the classical tradition of imposing
fines and prison sentences as the mostcommon forms of sanction. Irrespective of
these differences, fines are used extensively
throughout the Nordic countries.
When it comes to the use of prison
sentences, these are imposed more often
in Denmark and Norway - both in relativeand in absolute terms - than in Sweden and
Finland. On the other hand, prison
sentences are longer in Sweden and
Finland. This somewhat complicatedpicture serves as a good indication of the
difficulties faced when trying to measure
and compare the relative “punitiveness” ofthe sanction systems of different countries(cf. Pease, 1994).
In addition, we could note that Sweden
more or less abandoned the use of prison
terms as a means of sanctioning nonpayment of fines at the beginning of the
1980s (Sveri, 1998) and that since the mid1990s electronic tagging has been used as
an alternative for certain categories ofoffender sentenced to up to three months
imprisonment (Bishop, 1995; BRÅ, 1999).
In 1998 almost 4,000 individuals served
their sentence in this way, of whom lessthan 200 dropped out of the programme(KOS, 1998:45).
4. The PrisonsDespite the above differences in thefrequency and length of the prison
sentences imposed in the Nordic countries,

290

their judicial systems result in prison
populations of a similar size. The Councilof Europe (CoE, 1999a:13) reports that theinmate population in the Nordic countries(measured on 1 September 1997) is low ina European perspective (58 prison inmatesper 100,000 of population; the level being
lowest in Norway at 53 per 100,000 andhighest in Denmark at 62 per 100,000).
The corresponding figure for central
Europe was 89 per 100,000, and forsouthern Europe 100 (with Greece included
although she deviates quite drasticallyfrom this figure with a low inmate
population of 54 per 100,000). The
perception that prison sentences areharmful and should thus be avoided asmuch as possible still has a great deal of
currency in the Nordic countries(Bondeson, 1998:94).
Unlike in many other European
countries, there is no general problem ofprison overcrowding in Scandinavia(although such problems can arise in
special types of institutions, CoE,
1999c:115 ff). As a rule, prisons in theNordic countries are small (between 60 and
100 inmates), modern and characterised byhigh staffing levels (CoE, 1999a:51 ff).
Open prisons, where security
arrangements aimed at preventing escape
are kept to a minimum, account for
between twenty percent (Sweden) and forty
percent of prison places (Denmark). For
this reason the Nordic countries, with the
exception of Finland, report high levels of
escapees in comparison with those of othercountries (CoE, 1999a:41).
There are very few persons under theage of eighteen in Nordic prisons (suchindividuals account for way below one
percent of the prison population, CoE,
1999a:16). The proportion of female
prisoners lies - as in many other countries- between five and six percent, whilst the
proportion of foreign citizens among prison

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
inmates varies quite considerably - being
lowest in Finland at 4 percent, and highest
in Sweden at 26 percent (CoE, 1999a:18).
The average length of stay in prison canbe estimated (cf. NCS, 1997:82 f) to be
shortest in Norway (2.9 months in 1995)
and longest in Sweden (5.2 months). As
regards the number of individuals serving
life sentences, on a certain day in 1998
there were twelve such ‘lifers’ in Denmark,59 in Finland and 78 in Sweden (KOS,
1999:102). The life sentence has beenabolished in Norway.
Over the last 50 years, prison
populations have been fairly stable in the
Denmark, Norway and Sweden (see Figure3). The increases of the last ten years are
not that large when seen in a European
perspective (CoE, 1999c:17). Finland
constitutes a remarkable exception to thetrend towards rising inmate numbers.
There the prison population has shrunkquite considerably since the mid-1970s(1976: 118 inmates per 100,000 of
population) and is today on a par with thatof her Nordic neighbours. The roots of thepast high Finnish population may be traced

back to the civil war (1918) and its
aftermath (Christie, 1968:171). The
political mechanisms underlying the recent
decrease have been described by Törnudd(1993) and Lappi-Seppäla (1998), who among other things - concludes that thedecrease of the prison population has notchanged the Finnish crime picture in an
unfavourable way as compared to other
Nordic countries (p. 27).
5. Summary
This short overview of the state of thecrime levels and penal systems of theNordic countries, as portrayed by available
statistical sources, indicates that the crimelevel in Scandinavia (as regards traditional
offences) is on a par with or lower than thatof other European countries. Drug abuse
too appears to be less widespread in theNordic countries. Increases in crime rates
during the post-war period have been very
substantial in the Nordic countries just as
they have been elsewhere in Europe indicating that the recorded increases of
traditional crime in Europe may havecommon roots out of reach for varying
national welfare and criminal policies. The
1990s may have witnessed a stabilisation

Figure 3
Prison populations in Denmark, Finland, Norway and Sweden,
1950-1998 (every fifth year). Per 100,000 of population.
Source: NCS (1997; updated)200

Per 100,000

150

100

50

0
1950

FI
DK
SE
NO
1960

1970

1980

1990

2000

291

RESOURCE MATERIAL SERIES No. 57
in theft rates, albeit at a high level.
Increasing equality between the sexes has
probably contributed to an increase in thereporting of violent and sexual offences
against women (and children), making
these offences more visible. The system offormal control in the Nordic countries ischaracterised by relatively low police
density, a falling clear up rate, theimposition of fines in a high proportion of
criminal cases and low prison populations.
The international crime victims surveys(no data being available for Denmark and
Norway) indicate that fear of crime iscomparatively low in Finland and Sweden;
and that (for this reason) people do not feelthe need to take special precautions against
the possibility of crime to any great extent.
Respondents appear to be fairly satisfied
with the performance of the police and also
support limits on the use of prison
sentences.
It should be remembered that debateson crime policy in the mass media or among
politicians at the national level are rarely
based on a comparative cross-national
perspective. Conclusions such as thosedrawn in HEUNI’s “Profiles of Criminal
Justice Systems” (1998), for example,
on Denmark: “In general, therefore, thedata (which is admittedly limited)suggest a relatively low crime problem
in Denmark” (p. 134)or on Sweden: “All in all, therefore, theimage one receives from the data on
crime and criminal justice is that, atleast in the international comparison,
Sweden has been relatively successful
in its crime prevention and criminal
justice policy” (p. 434)
would be rejected by many editorials andpoliticians as artefacts. Instead, thescenarios painted are not uncommonly

292

quite clear in their inclination towards law
and order and the need for tougher anticrime measures.
References
Summary crime and correctional
statistics regarding the Nordic countries arefound in CoE (1999a, 1999b) and NCS(1997). Summary profiles of criminal
justice systems are presented by HEUNI(1999) and in the World Factbook of
Criminal Justice System(www.ojp.usdoj.gov/bjs/abstracts/
wfcj.htm). EUROSTAT (1997) provides
valuable demographic and social data forthe period 1986-1996.
Balvig, F., Crime in Scandinavia: Trends,
Explanations, and Consequences. In:
Bishop, N. (Ed), Scandinavian Criminal
Policy and Criminology 1980-85, pp. 7-17.
Copenhagen: Scandinavian ResearchCouncil for Criminology, 1985.
Bishop, N., Intensive supervision withelectronic monitoring: a Swedish
alternative to imprisonment. Penological
Information Bulletin. Nos. 19 and 20, pp.
8-10. Council of Europe, 1994-1995.
BRÅ, Intensivövervakning med elektronisk
kontroll. En utvärdering av 1997 och 1998
års riksomfattande försöksverksamhet[Intensive supervision with electronicmonitoring. An evaluation of thenationwide trial period 1997 and 1998].
Brå-Rapport 1999:4 [with a summary inEnglish]. Stockholm: Brottsförebygganderådet, 1999.
B o n d e s o n , U . , G l o b a l Tr e n d s i n
Corrections, Annales Internationales deCriminologie 36(1/2), pp. 91-116, 1998.
Christie, N., Changes in Penal Values,
Scandinavian Studies in Criminology 2,
pp. 161-172, 1968.

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CoE, Council of Europe Annual Penal
Statistics SPACE I. Survey 1997. PC-CP(99) 3 REV. Strasbourg, 5 July 1999a.
CoE, European Sourcebook of Crime andCriminal Justice Statistics. PC-S-ST (99)
8 REV. Strasbourg, 7 July 1999b.
CoE, Rapport finale d’activité. Conseil decoopération pénologique. CDCP (99) 18
Addendum I. Strasbourg, le 13 julliet
1999c.
van Dijk, J.J.M., Mayhew, P. and Killias,
M., Experiences of Crime Across the World:
Key Findings of the 1989 International
Crime Survey. Deventer: Kluwer.
Eisner, E., The Effects of Economic
Structures and Phases of Development on
Crime. In: Council of Europe, Crime andeconomy. Proceedings. Reports presented
to the 11th Criminological colloquium(1994). Criminological research, Vol.
XXXII, pp. 13-51. Strasbourg: Council ofEurope Publishing, 1995.
EMCDDA, Annual Report on the State of
the Drugs Problem in the European Union
1997. European Monitoring Centre forDrugs and Drug Addiction. Lisboa, 1997.
EMCDDA, Annual Report on the State of
the Drugs Problem in the European Union
1998. European Monitoring Centre forDrugs and Drug Addiction. Luxembourg:
Office for Official Publications of theEuropean Communities, 1998.
EUROSTAT, Yearbook ’97. Luxembourg:
Office for Official Publications of theEuropean Communities, 1997.
Estrada. F., Juvenile Crime Trends in PostWar Europe. European Journal on
Criminal Policy and Research 7, pp. 2342, 1999.

Heidensohn, F. and Farrel, M. (Eds),
Crime in Europe. London: Routledge, 1991.
HEUNI, Profiles of Criminal Justice
Systems in Europe and North America
1990-1994. K. Kangaspunta, M. Joutsen,
N. Ollus and S. Nevala (Eds). European
Institute for Crime Prevention and Control,
affiliated with the United Nations.
Publication Series No. 33. Helsinki, 1999.
Joutsen, M., Recent Trends in Crime inWestern Europe. Paper presented at theFifth European Colloquium on Crime andC r i m i n a l P o l i c y, L j u b l j a n a , 2 5 - 2 7
September 1996.
Joutsen, M., Finland. In: G. Newman(Ed.), World Factbook of Criminal Justice
Systems. Internet: www.ojp.usdoj.gov/bjs/
pub/ascii/wfbjfin.txt [Last modified: 02/23/
99].
Killias, M., Crime Policy in the Face of thethe Development of Crime in the New
European Landscape. Report from theFifth Conference on Crime Policy.
Strasbourg: Council of Europe, 1995.
KOS, Kriminalvårdens Officiella Statistik[Official Statistics of Corrections].
Norrköping, 1999.
Lappi-Seppälä, T., Regulating the Prison
Population. Experiences from a Long-Term
Policy in Finland. National ResearchInstitute of Legal Policy. ResearchCommunications 38. Helsinki, 1998.
Mayhew, P. and van Dijk, J.J.M., Criminal
Victimisation in Eleven Industrialised
Countries. Key findings from the 1996
International Crime Victims Survey.
Onderzoek en beleid 162. WODC, 1997.
Marshall Haen, I., How Exceptional Is theUnited States? Crime Trends in Europe
and the U.S., European Journal on

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Criminal Policy and Research, 4(2), pp. 735, 1996.
NCS, Nordic Criminal Statistics 19501995. Hanns von Hofer (Ed). Stockholm:
Department of Criminology, 1997.
NOS, Kriminalstatistikk 1995 [Official
Statistics of Norway, Crime Statistics
1995]. C 392. Oslo-Kongsvinger, 1997.
Olsson, B., Stymne, A., Hakkarainen, P.,
Schmidt, D., Skretting, A. and Valsson, K.
S., The Nordic drug scene in the 1990s:
recent trends, Nordic Studies on Alcoholand Drugs 14 (English Supplement), 1997.

1999.
Steffensmeier, D. and Harer, M.D., Making
Sense of Recent U.S. Crime Trends, 1980
to 1996/1998: Age Composition Effects andOther Explanations, Journal of Researchin Crime and Delinquency 36(3), pp. 235274, 1999.
Sveri, K., Incarceration for Non-paymentof a Fine. In: H.J. Albrecht et al.,Internationale Perspektiven in
Kriminologie und Strafrecht. Festschrift
für Günther Kaiser, pp. 681-690. Berlin:
Duncker & Humblot, 1998.

Pease, K., Cross-National Imprisonment
Rates. Limitations of Method and Possible
Conclusions, British Journal of
Criminology 34, pp. 116-130.

Törnudd, P., Fifteen Years of Decreasing
Prisoner Rates in Finland. National
Research Institute of Legal Policy.
Research Communication 8. Helsinki,
1993.

Pfeiffer, C., Juvenile crime and violence inEurope. In: M. Tonry (Ed), Crime andJustice: A Review of Research 23, pp. 255328. Chicago, IL: University of Chicago
Press, 1998.

Vogel, J., Living conditions and inequality
in the European Union 1997. Eurostat
Working Papers. Population and social
conditions. E/1997-3. [Working document].
1997.

Reuband, K.-H., Drug Policies and Drug
Prevalence: The Role of Demand andSupply, European Journal on Criminal
Policy and Research 6(3), pp. 321-336,
1998.

Westfelt, L., Utvecklingen av registreradebrott under efterkrigstiden. Sverige ieuropeisk belysning [Development ofregistered offences during the post-war
period. Sweden compared with Europe].
In: H. von Hofer (Ed), Brottsligheten i
Europe [Crime in Europe], pp. 20-40.
Lund: Studentlitteratur, 1998.

RSÅ, Nordisk kriminalstatistik [Nordic
criminal statistics]. In: Rättsstatistiskårsbok 1990 [Yearbook of Judicial Statistics
1990]. Official Statistics of Sweden.
Stockholm: Statistics Sweden, pp. 142-152,
1990.
Shinkai, H. and Zvekic, U., Punishment.
In: G. Newman (Ed), Global Report on
Crime and Justice, pp. 89-120. Published
for the United Nations Office for Drug
Control and Crime Prevention. Centre forInternational Crime Prevention. New
York/Oxford: Oxford University Press,

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II. THE SWEDISH PRISON SYSTEM
1. Incarceration in Sweden
Since the end of the 1980s, the Swedish
penal system has been officially based ona model of just deserts (cf. Lundquist, 1990;
Tham, 1995). This means that theperceived gravity of the offence, or the‘penal value’, is the most important factor
in the decision of an appropriate sanction
for the crime. This does, however, not115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
imply that there is a heavy reliance on theuse of imprisonment as a sanction forcrimes. Quite the contrary: the modern
official view is “that, preferably, people
ought not to be locked up. To deal withoffenders by keeping them in thecommunity is considered to be the best way
of getting them to lead crime-free lives”(Basic Facts, 1997: 1). Thus, probation,community service, civil commitment(contract treatment), suspended sentences
and fines are the preferred methods ofpunishment. This is further emphasized
by a special provision in the Criminal Codewhich prescribes that in all cases the court“is required to give notice to any
circumstance or circumstances suggesting
the imposition of a sentence milder thanimprisonment”.
In 1998, about 125,000 people (or 1,400
per 100,000 population) were found guilty
for a variety of criminal acts. The
breakdown of sanctions imposed was asfollows: 77,000 fines; 15,000 prison
sentences (of which 4,000 were converted
into ‘electronic monitoring’, see below);
10,000 probation orders (including
supervision of young offenders); 8,000
penal warnings (suspended sentence), andless than 400 committals to psychiatriccare. In addition, the public prosecutor
waved prosecution for 14,000 people.1
All prison sentences are for a fixed termor for life, depending on the gravity of theoffence. The minimum prison sentence is
14 days. Most often the actual prison
sentence is for a relatively short period.
During 1998, a total of 9,497 persons wereadmitted to prison, of whom 30 percent
received a sentence of two months or less1

If not otherwise stated, all statistical data are takenfrom the following official sources: Crime andCriminal Justice Statistics 1998 and Correctional
Statistics 1998. The Swedish population amounted
to 8.85 million people in 1998.

and 33 percent between two and six
months. The average prison population
amounted to 5,156 prisoners (of whom
1,071 were remand prisoners) or to a totalof 58 prisoners per 100,000 population.
Prisoners released in 1998 had served anaverage of 154 days in prison.
2. The Prison System: An Overview
The Ministry of Justice is responsible forestablishing prison policy, but has no
authority to interfere in the daily work of
the prisons and probation service centrally
or regionally. This is, instead, theresposibility of The Swedish Prison and
Probation Service (SPPS), which is headed
by a government appointed board thatconsists of trusted citizens (members ofparliament, charitable organizations,labour unions, and so forth). The
government also appoints the DirectorGeneral.
All prisons and gaols (remand prisons)in Sweden are state controlled and there
are no county jails. Privatization of prisons
is a non-issue in Sweden, despite
Parliament’s decision, in 1998, that
authorized private security firms may be
used, under special circumstances, to carryout functions such as transporting
prisoners or guarding hospitalized
prisoners.
The penal administration of the country
is divided into five regional units. The
regional offices are responsible for theadministration of gaols and prisons,aftercare and non-custodial sentences(supervision). In October 1998, the SPPS
employed approximately 7,800 persons, 42
percent of whom were female; 4,487 of staff
were employed in prisons and 1,553 ingaols. In 1997, the staff/inmate ratio
amounted to 0.9: 1 in the prisons and to
1.4: 1 in the goals. The total budget,
including expenditure for requirements
such as non-institutional care, for the 1998

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RESOURCE MATERIAL SERIES No. 57
fiscal year was 4,150 million Swedish
Kronor (SEK) (about 460 million US
Dollars). The daily cost per inmate,depending on the prison category (seebelow), has been calculated at between 200
US Dollars in open prisons and 300 US
Dollars in maximum-security prisons.
The management style in Swedish
prisons is ‘organic’, rather than militaristic.
Armed guards do not exist. In very serious
unrest situations, the local police
department is contacted and authorized todeal with the situation. However, riots andother forms of unrest are extremely rare
events in Swedish prisons. In 1994 a major
incident occurred at the maximum security
Tidaholm prison, when inmates set fire toparts of the prison.
Presently an increasing number ofprison officers are required to maintaincontact with a specified number of inmateson a daily basis. The purpose of this contact
responsibility is to assist inmates withtreatment, education and activity
planning, as well as to assist in the
granting of routine parole. The minimum
requirements for a position as correctional
officer is at least two years of senior highschool education or the applicant must be
at least 26 years of age with at least four
years of work experience. In addition to
the general educational requirements,
prospective correctional officers are
required to have at least two years of seniorhigh school training in the English
language, Swedish and in the social
sciences. Hiring is based on personal job
interviews with prospective officers.
2.1 Prison Classification
In Sweden there are four different
security categories for prisons. Prison
categories I to III are known as ‘closed
prisons’ and category IV prisons are
considered ‘open prisons’. This system wasintroduced in the first half of the 1990s.

296

Before that, a distinction was madebetween national and local, or‘neighbourhood’ prisons. National and local
prisons could be open or closed prisons.
National prisons were usually maximumsecurity prisons but could vary frommaximum to minimum prisons.
Neighbourhood prisons were usually
minimum or medium security prisons.
Category I prisons are similar to
maximum-security prisons in othercountries. They are designed with thehighest level of security possible, given thecurrent state of technology and security
methodology, in order to prevent escapesand release attempts. The only difference
between category II and category I prisons
is that category II prisons do not havesecurity measures preventing releaseattempts. Category III prisons arebasically designed to thwart ‘impulse
escape’ attempts. These prisons only
provide minimum security measuresagainst escapes. Finally, category IV
prisons, known as ‘open prisons’, have nophysical barriers or technology aimed atpreventing escape. The only barriers toescape are the (unarmed) prison officers
themselves. Persons convicted of drunken
driving and less serious offences are often
sent to category IV prisons. Prisoners
serving time in these prisons may beallowed to pursue employment or education
during the day outside of the prison.
In 1998, the average number of available
prison beds (including gaols) wasapproximately 5,600 with the national
average being at about 87 percent ofoccupancy. On average, six percent of theprisoners were placed in category I prisons;18 percent in category II prisons; 30 percent
in category III prisons; 21 percent in
category IV prisons; and 26 percent wereremand prisoners.
From an international perspective,

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Swedish prisons are modern, expensive,and small. The largest prison, Kumla,
which is a maximum-security prison, has
about 260 (nominal) beds and only 177
were in use during 1998. The typical
Swedish prison has far fewer than 100
beds. Single celling at night is the rule andover-crowding does not occur.
In 1998, no escapes were reported fromcategory I and II prisons, 36 escapes fromcategory III prisons, 155 escapes fromcategory IV prisons and no escapes fromgaols. Over and above these numbers,
another 178 abscondings (in connection
with furloughs, during transport, etc.) werereported. By official Swedish standards,
this level of security is considered high.
3

The Swedish Prison Philosophy
Even if sentencing in Sweden is now
based on a just deserts model, treatment,
presently called special ‘programmes
activities’ is still an explicit goal ofcorrection. According to the current Prison
Treatment Act of 1974 (PTA), the primary
goal of the prison sentence is to promote
the inmate’s adjustment to the community
as well as to counteract the detrimental
effects of imprisonment. Already in the
Prison Treatment Act of 1945, the view was
expressed that the deprivation of freedom
itself should be regarded as the penal
element of a prison sentence and not theactual prison experience itself. Thus, the
PTA of 1974 states explicitly that an inmate
shall be treated with respect for his or her
human dignity.
The PTA of 1974 is based on four
principles:(i) imprisonment as last resort, that is,
the usual punishment should be a fineor a community sentence, since
imprisonment normally has
detrimental effects;(ii) normalization, that is, the same rules
concerning social and medical care andother forms of public service should
apply to prisoners just as they apply
to ordinary citizens;(iii) vicinity, that is, the prisoner should beplaced in prison as close as possible tohis or her home town; and(iv) co-operation, meaning that all parts ofthe correctional system (probation
service, gaols and prisons) should work
closely together in individual cases aswell as in general.
Due to a general shift in Swedish
criminal policy towards a pro-active andmore repressive model, increasingemphasis has been placed on security
during the late 1980s and the 1990s withthe result that the vicinity principle is now
obsolete. Recently, the aim of the prison
system has been officially described asfollows: “The correctional system’s
operations shall be characterized by ahumane attitude, good care of and active
influence upon the prisoner, observing ahigh degree of security as well as by due
deference to the prisoner’s integrity and todue process. Operations shall be directed
towards measures, which influence theprisoner not to commit further crimes. The
objective should be to promote andmaintain the humane treatment ofoffenders without jeopardizing security”(author’s translation). Or in the words of
the SPPS itself : “The Prison and Probation
Service has two main goals. To contributeto the reduction of criminality, and to work
to increase safety in society. To achievethese goals we work with sentenced
persons in order to improve their
possibilities of living a life withoutcommitting new crimes.”
4

Specific Aspects of theCorrectional System
4.1 Medical Treatment of Prisoners
All newly received inmates arequestioned about their state of health by
the admitting prison official. In the event

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of any health complaints, the prison official
sends them to a prison nurse. In 1998, a
total of 163 nurses were employed by the
Prison Service. Typically, all new inmatesare examined by a prison nurse within 24
hours of arrival. Any prisoner who isidentified as possibly having a serious
medical problem is then referred to aphysician for a closer examination and, if
necessary, any further referrals are made.
In the event that an inmate requires
specialized treatment, the treatment isobtained from outside medical services.
Inmates that require hospitalization aretransferred to an outside hospital for as
long as necessary.
Inmates are offered the opportunity tohave an HIV test performed upon entry
into the facility. Prisoners who are seropositive or who have the Aids virus may
request separation from other prisoners.
On April 1, 1998, 25 inmates were classified
as HIV-positive.
In 1998, three prisoners and sevenremand prisoners were reported to havecommitted suicide. In 1994 the European
Council’s Committee for the Prevention of
Torture and Inhuman or Degrading
Treatment or Punishment (CPT) criticized
Sweden for keeping remand prisoners
under excessive restrictions and inisolation.2 Recently, Parliament decided toease restrictions and that, as a rule,remand prisoners must be given theopportunity to stay with other remandprisoners.
4.2 Prison Labour
All inmates must participate inprogrammes activities in one form or
2

The Swedish Government had requested the
publication of this report and it is available fromthe CPT’s website (www.cpt.coe.fr/cpt/swe.htm). The CPT paid a new visit to Sweden in February
1998.

298

another. The programmes include‘conventional work’, education, specialized
rehabilitation or treatment programmes,
day releases for the pursuit of study orwork outside the prison during normal
business hours, internal service, that is,
kitchen duties, building and generalmaintenance, and finally, training ineveryday social skills, like how to dolaundry, maintain a clean living space,cooking, and planning a personal budget.
In 1998, work programmes comprised
about 47 percent of all programmes
activities, education formed 20 percent,service and maintenance programmes
comprised 15 percent, specialized rehabilitation and treatment programmes,
six percent, and other activities 12 percent.
The industrial prison work is
administrated by a special unit known as
KrimProd. This unit is responsible for
manufacturing operations within theprison system and also functions as asupplier to civilian companies or sells
various prison products directly to retailers
and wholesalers. KrimProd employs
modern managerial work ethic principles.
The employment fields traditionallyavailable to inmates are industry,
agriculture, horticulture, forestry,
construction and various service
occupations. Those inmates who areemployed in the conventional employment
sector receive a wage of about 1.20 US
Dollars per hour. Prisoners participatingin educational programmes are paid a
specific allowance of about 1 US Dollars
per hour.
4.3 Disciplinary and Security Measures
Unlike other countries, solitaryconfinement, as a formal disciplinary
punishment, is not used in the Swedishp r i s o n s y s t e m . H o w e v e r, s o l i t a r y
confinement can be resorted to under thosespecial circumstances (disturbing thegeneral order, being under the influence of

115TH INTERNATIONAL TRAINING COURSE
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intoxicating substances, attempts toescape, investigations of breach of
discipline). In 1998, a total of 2,100 casesof solitary confinement were reported.
According to the law, amended on
January 1, 1999, there are two official
sanctions that prison officials may impose
upon a prisoner for violating prison rules,
although, serious violations whichconstitute a criminal offence, can bebrought before a court. The principal
sanction available for use by the prison
officials is a decision that up to 15 days of
release can be postponed. The second
sanction is a formal warning to theprisoner. In 1998, 3,700 warnings and1,600 cases of postponed release were filed.
The average number of days additionallyspent in prison amounted to 3.6 days.
Another informal, but documented
disciplinary measure is the use of a prisont r a n s f e r. I f a p r i s o n e r s e r i o u s l ymisbehaves, the prison officials may
transfer the unruly inmate to anotherprison. In 1998, the number of transfers
amounted to 330 cases. Despite theavailability of these sanctions, informal
discussions with the fractious prisoner are
the usual method of dealing with
infractions unless the infraction is of anespecially serious nature (Bishop, 1991).
The illegal use of drugs in prison orwhilst on furlough and escapes or
attempted escapes are the most common
reasons for imposing disciplinary measureson an inmate (Bishop, 1991). It should be
noted that escapes from prison or
attempted escapes are not viewed as acriminal offence in Sweden. Therefore, nofurther sanctions can be imposed on an
escapee other than the official disciplinary
sanctions. However, disciplinary problems
are not a priority issue in debates about
Swedish prisons. Nor is violence between
prisoners and prison employees, between

prisoners amongst themselves or prison
rapes a major issue. In 1998, a total of 241
employees, including staff of gaols andafter-care services, reported that they had
been subjected to threats or violence
perpetrated by inmates or clients.
Approximately 45 percent of the reports
referred to intentional violence, while 55
percent were reports of different forms of
threats. However, since 1993, at least four
prisoners were killed by other prisoners.
No prison killings had ever been reported
prior to 1993. All killings occurred in
maximum-security prisons.
4.4 Complaints procedures
The complaints procedures are laid downin the Prison Treatment Act (PTA) and thePrison Treatment Ordinance. In general,
the role of the courts is down played in the
Swedish system. Only decisions ofindividual cases, decided by the central
p r i s o n
a d m i n i s t r a t i o n(kriminalvårdsstyrelsen), can be sent on
appeal to the administrative court.
Statistical data on the number and natureof prisoners’ complaints and the outcomeof complaints are not available.
Like every other citizen, prisoners also
have the option to appeal to theombudsman. During the period 1 July
1997 to 30 June 1998, the ombudsman
concluded a total of 410 complaints in thefield of corrections, of which 32 cases led toadmonitions or criticism by theombudsman.
Inmates in Swedish prisons have theright, guaranteed by law, to meet anddiscuss issues of mutual interest and topresent their views to the warden of theprison. Prisoners can hold regularmeetings, unattended by the prison staff
to discuss the pertinent issues. Proposals
emanating from such inmate ‘community’
meetings are discussed with the warden bya specially elected council of inmates. The

299

RESOURCE MATERIAL SERIES No. 57
inmate council is elected by the otherinmates and represents them.
Swedish prisoners are entitled to votein the general elections.
4.5 Visits and Other Contacts with
the Outside World
From an international perspective, theSwedish prison policies regarding visits
and furloughs are quite liberal. Regularcontact with the outside world is officiallyviewed as an important component in thetreatment of the offender. Inmates are
granted furloughs, or short-term leave,
outside of the prison, on a regular basis.
The average length of a normal furlough isthree days. Special furloughs are also given
on a case by case basis. Before regularfurloughs are granted, inmates must ‘prove’themselves during various qualifying
periods. In 1998, 18,500 normal and 33,000
special furloughs were granted.
In 1998, it was reported that about 1.3
percent of normal furloughs and 0.2 percentof special furloughs had been abused.
‘Abused’ means that the specificstipulations of the individual furlough wereviolated such as drug or alcohol abuse while
on furlough or that the inmate did notreport back to the prison at the end of theperiod of leave, thereby constituting anescape from prison.
Visits may take place unattended by aprison officer. However, the visitor may besearched prior to the visit as is the inmate
after the visit is concluded, all in an effort
to squelch the importation of drugs andother unauthorized materials into theprison environment. If necessary, prison
officials and the police perform backgroundchecks on the visitors of inmates to assess
the security threat. In cases where it isbelieved that the character of the visitor is
doubtful, that is, he or she may attempt tosmuggle in contraband for the inmate,

300

visits are supervised by a prison officer.
Facilities for regular conjugal visits are also
made available for those prisoners who
have a partner. Another form of visit is
the regular visits paid by members oforganizations like the Red Cross, Amnesty
International, the Churches, and so on.
Special visiting apartments, in close
proximity to three of the prisons, areavailable to facilitate children’s contact
with their imprisoned parent.
4.6 Opening the PrisonsDue to the classification scheme of
Swedish prisons, that is, security
classifications I to IV, the only prisons thatare considered completely open are thecategory IV facilities. Policies regarding
frequency of furloughs are also more liberalin the open facilities than at the otherlevels. Provision for day-release are madefor prisoners in open prisons in order topursue outside employment, maintaintheir regular job, or pursue outside
educational activities. In 1998, about 640
such day-release cases were granted.
Furthermore, in about 17,000 cases,
inmates were allowed to participate invarious social activities outside the prison.
Another 670 inmates were placed intreatment facilities for drug abusers or in
foster homes.
4.7 Early Release
Inmates, who are serving a time-limited
sentence of more than 1 month areconditionally released when 2/3 of thesentence has been served. The length of
the test period, upon early release, isusually commensurate with the length ofthe original sentence, but of at least one
year. During the test period, theconditionally released person can be placed
under supervision. Prior to January 1,
1999, inmates with sentences of more than
2 years could be released after 1/2 of thesentence has been served. This possibility
is now abolished and the 2/3-rule applies.

115TH INTERNATIONAL TRAINING COURSE
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5 Special Categories of Prisoners
5.1 Prisoners in Maximum Security
Section 7(3) of the Prison Treatment Act
states that any prisoner who is serving asentence of at least four years or serving asentence of at least two years for either anaggravated drug offence, any attempt at
conspiracy or aggravated drug smuggling,must serve the sentence in a closed,
maximum security national prison, if there
is reasonable cause to believe that theprisoner will attempt to escape before theminimum sentence is served. This sectionof the PTA was promulgated on 1 July 1988
after the escape of a Swedish spy who had
been sentenced to life imprisonment.
Usually, one-third of those prisoners towhom s. 7(3) applies are in fact placed in aclosed, maximum-security prison. On 1
October 1998 there were a total of 338‘Section 7(3) prisoners’. Half of them wereconvicted for drug offences.
Furthermore, s. 20 of the PTA provides
for the separation of prisoners in maximum
security. Section 20 states that a prisoner
may be separated from the general prison
population if: (a) the convicted person is
an imminent threat to national security;(b) if the inmate seriously disrupts thenormal order and general discipline within
the prison; (c ) if the inmate continues toengage in criminal activity and there isreason to believe that the inmate willattempt to escape; and (d) if it is necessary
to separate the inmate in order to prevent
criminal activities while in the prison
environment. This section of the PTA also
states that, if the duration of the separationfrom the general prison populace is likely
to be lengthy, the convict may be placed ina special maximum-security wing within
the prison.
A prisoner in a maximum-security
facility may be transferred to a minimumsecurity facility four months before the endof the sentence in order to facilitate

preparation for release into the community.
Inmates, who are serving time as s. 7(3)prisoners, are not afforded the same
regular furloughs as other prisoners.
Section 7(3) prisoners will only receive theirfirst furlough after one-quarter of theirsentence, or two years of their sentence,has been served, whichever comes first.
Special leave may also be granted to s. 7(3)prisoners at the discretion of the prison
authorities. Those prisoners who would
normally not be given a furlough, that is,serious offenders and ‘lifers’, are allowed,
what is known as a ‘breathing space’ leave.
This type of leave is very restrictive relative
to the normal three-day furlough. A
prisoner, who receives special leave of thiskind, is accompanied by two prison officers,
who are dressed in casual civilian clothes,for the entire duration of the leave. The
duration of this special leave is normallyfor four hours and can include various
activities such as a visit to a shopping mall,a meal in a restaurant or a walk through apark. Prisoners in maximum security areof necessity more strictly controlled thanthose serving time in medium or open
prisons, thereby inevitably reducing theamount of contact these prisoners havewith the outside world.
Section 7(3) has been criticized as being
unfair and was changed on 1 January 1999.
Currently, individualized decisions are
made for each case, spelling out exactly the
special conditions and restrictions of theprison term.
5.2 Long-Term Prisoners
Prisoners who are serving a sentence ofat least two years are considered long-term
prisoners in Sweden. A sentence of life canbe commuted, by a pardon, to a fixed termby the government. Once a life sentence iscommuted to a fixed term, the normal
provisions of conditional release apply tothe prisoner once he or she is released. The
average period of incarceration of301

RESOURCE MATERIAL SERIES No. 57
prisoners, who have been sentenced to life
imprisonment, is now above 12 years andthis period has increased during the last
decade. A sentence of life imprisonment is
imposed for murder and, in exceptional
cases, for high treason. In the last two
decades the number of life sentences has
steadily increased (despite a low and stablehomicide rate at about 1.2 killings per
100,000 population). Between 1988 and
1998, 77 ‘lifers’ were admitted to Swedish
prisons, of whom approximately one-third
were foreign citizens. The total number of‘lifers’ has increased from 24 on 1 October
1988 to 81 by 1 October 1998. The numberof prisoners, with a sentence of four years
or more, has also almost doubled. On 1
March 1989, there were 600 such prisoners
and by 1 October 1998 this amount hadrisen to 1,038.
5.3 Women Prisoners
As in most other countries, womenconstitute a small percentage of theSwedish prison population; in 1998 they
made up five percent. For a long time, theHinseberg prison was the only all-female
facility in the country. In 1989 and 1996,
two additional all-female prison wereopened, known as Färingsö (nearStockholm) and Ljustadalen in the northof the country. These prison were opened
in response to the growing number ofwomen prisoners, at the Hinseberg facility
which is some distance from the Stockholm
area, who were eligible to serve theirsentences in neighbourhood prisons. In
1997, Hinseberg could accommodate 115
prisoners, Färingsö about 30 and
Ljustadalen 20 prisoners. The remaining
prisoners were divided between different
neighbourhood facilities that accommodate
both men and women.
From an international perspective, of amixed-gender facility may seem odd and it
is, in fact, contrary to international
conventions. A study of women prisoners

302

in Sweden revealed, however, that the
majority of women prisoners preferred toserve time in a mixed facility; 56 percentof the respondents said they preferred
mixed-sex prisons, whilst 16 percent of the
respondents preferred women-only
facilities (Somander, 1994). However, from
1 January 1999, the system of mixedgender facilities was abolished. Currently,
a woman prisoner may only in exceptional
cases and only with her explicit consent beplaced together with male prisoners in thesame prison.
In 1998, the majority of female prisoners
were between 30 and 44 years of age. The
two most common crimes for which female
inmates had been convicted were theft anddrug offences.
Women prisoners are allowed to havetheir babies with them. In 1998, there were
13 such prisoners and the average timespent in prison was four months. All of thechildren were younger than two years ofage.
Prison sentences are usually shorter for
women than for men. In modern times, up
until 1996, no women have been sentenced
to life imprisonment. According to official
recidivism statistics, there is no differencein the recidivism rates of men and womenwith a prior criminal record. Dependingon the number of prior convictions, it isanticipated that between 45 and 90 percent
of prisoners, male and female, will bereconvicted3 within three years.
Corresponding recidivism rates for persons
who have been fined tend to vary between
20 and 80 percent. Seen from anotherperspective, more than half of the inmateshas prior prison experience (56 percent in1998).

3

Note, that the reconviction can refer to a minor
offence.

115TH INTERNATIONAL TRAINING COURSE
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5.4 Juvenile Prisoners
In Sweden the age at which criminal
responsibility begins is 15 years. According
to law, juveniles below the age of 15 cannot
be punished; they are taken care of by thesocial authorities. Between the ages of 15
and 21, the age of the offender is taken into
special consideration for sentencing
purposes. Section 7, Chapter 29 of the
Criminal Code states that particularconsideration shall be given to theyouthfulness of the offender if an offence
has been committed before the age of 21.
It further states that no person under theage of 21 shall be given a sentence of life
imprisonment. In general, the Swedish
Welfare Service is the agency who is
responsible for dealing with juvenile
offenders and the guidelines for dealing
with such persons are laid down by theCare of Young Persons Act of 1990 and theSocial Welfare Act of 1980.
The most frequent criminal sanctions
against juveniles are fines, waivers ofprosecution and transfer to the social
authorities. In 1998, only 21 persons, aged
between 15 and 17 years, and 544 persons,aged between 18 and 20 years, were
imprisoned. Of the 15 to 17 year old
category, four boys were sentenced forviolence and eight for robbery. Fourteenboys had a prison sentence of up to 6
months and three boys were sentenced tomore than one year of imprisonment.
Special youth prisons were abolished in
1980. Instead, one entire prison and one
wing in another prison is set aside forjuvenile offenders.
On 1 January 1999, a new sanction
called closed youth care became operative.
This new sanction, which may be imposed
for a period between 14 days and four years
is intended to replace the relatively rareprison sentences for offenders who commit
serious crimes prior to their 18th birthday.

Such young offenders are now placed in ahome administered by the social
authorities.
5.5 Drug Addicts in Prison
In a European context, Sweden is known
for its repressive drug policy (Lenke andOhlson, 1998; Tham, 1998). The drug
policy is one of the major explanations forthe many changes of prison conditions andprison policies since the early 1980s. A
growing number of people have beensentenced to imprisonment for drug
offences, the lengths of sentences for drug
offences have increased and various
aspects of the prison regime have been
‘toughened’.
In 1998, almost one third of the prison
inmates were imprisoned for a drug offence.
This percentage includes cases where thedrug offence was not the principal offence.
The number of prisoners who have been
convicted of drug related offences is
unknown. It was also reported that 47
percent of all prison inmates were classified
as inmates with a history of drug addiction
and that the likelihood of the frequency of
drug addiction of the convicted person
increases relative to the length of thesentence. For instance, 59 percent of theinmates sentenced to two months or more
imprisonment were considered drug
abusers. Two-thirds of that percentage areinmates who are 30 years of age or older.
One of the official policy goals is to havedrug-free prisons. Drug use while in prison
is relatively rare in the category I prisons
but the incidence of drug use increases witheach more lenient prison classification.
Obviously, this is due to the tighter security
in the category I prisons and the gradualrelaxing of security measures in the otherclasses of prisons. Inmates are subjected
to frequent urine tests as well as room
searches. Even tracker dogs are used. In
1998, 81,000 urine tests and 66,000 cell303

RESOURCE MATERIAL SERIES No. 57
searches were reported. Positive urine
tests usually indicate the use of cannabis
and of amphetamines.
Other measures used in an effort toeliminate drug use within prison are thesearching of personal mail and visitors.
The prison service also collaborates withthe welfare service to identify and makecontact with the drug users in order tomotivate drug users to seek treatment. The
Standing Committee on Justice has
recently agreed with the Government’sview that seizures of narcotic drugs in theprisons and gaols are few in number andthat the majority of prisons seldom or never
have occasion to report the occurrence ofdrug abuse on their premises.
By law the prison system is not required
to provide comprehensive drug treatment
programmes. Rather, the prison system
works with other agencies and privateorganizations to arrange and provide drug
treatment programmes. On 1 October 1998
there were a total of 400 prison beds
especially reserved for the treatment ofdrug abusers. In other prisons, there areless structured programmes. In all, 45
percent of all inmates who were considered
to be drug abusers participated in someform of anti-drug programmes. About 130
prisoners were placed in drug treatment
programmes outside the prisons.
Finally, special ‘drug-free’ sectors havebeen set up within various prisonsthroughout the country. These are special
sectors within a prison that are officiallydesignated as being completely drug-free.
Inmates may request transfer to suchsectors only after signing a contract whichaffirms their desire to give up drugs and toremain drug-free while in the sector.
Special rehabilitation and coping
programmes are set up within these special
sectors in order for the inmate to realize
the drug-free goal.

304

In some cases, where the offence is drugrelated, the court may hand down asentence of contract treatment, which is aform of civil commitment, in lieu of a prison
term. This sentence is a probation orderwith a specific order to enroll in a drug
treatment and rehabilitation programmes.
In most cases, if this contract is broken,
the court will order the remainder of thesentence to be served in prison. In 1998,
959 contract treatment sentences wereordered by the courts, of which the vast
majority (69 percent) were handed down
to offenders between 30 and 59 years of age.
The high percentage of older offenders isdue to the fact, that, in Sweden, drug
addiction is not an unduly prevalent
phenomenon among younger people.
5.6 Foreign Nationals in Prison
In 1998, a total of 2,135 foreign
nationals, including non-residents, wereadmitted to prison which translates into
22 percent of the total number of people
admitted to prison in 1998. In relation totheir total percentage of the general
population in Sweden, foreign nationals areover-represented in the prison system aswell as in judicial statistics (von Hofer etal., 1997; Martens, 1997).
Foreign prisoners are placed among
Swedish prisoners. Special prisons orwings, exclusively dedicated to foreignprisoners do not exist. Approximately 15
percent of the foreign prisoners are usuallydeported from Sweden after having served
their prison sentence. For obvious reasons,foreign prisoners who are not permanent
residents in Sweden, are not granted
furloughs to the same extent as Swedish
prisoners are. International agreements
between Sweden and a number of countries
allow the execution of the prison sentencein the home country of the sentenced
person.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
6

Conclusions
According to the description given above,
one could conclude that the Swedish prison
system is a system in balance. This is also
borne out by the fact that, during the 1990s,
Swedish mass media has not focussed on
the prisons, but on the police and othersectors of the criminal justice system. In
contrast with a number of other European
countries, the prison population in Sweden,
as well as in other Scandinavian countries,
has remained rather stable during last 30
years. In Sweden this was partly
accomplished by the introduction ofalternatives to imprisonment like civil
commitment (1988), community service(1990) and electronic monitoring (1994).
Especially electronic monitoring, which canreplace a prison sentence of up to threemonths, is considered to have saved prison
space (between 350 and 400 beds per year,
see Part III below). During the 1970s and1980s efforts were also made to shorten thetime spent in prisons (for example, shorter
sentences, deduction of time spent in gaol,
conditional release after one-half of theimposed prison sentence). In the 1990s,
however, this process has come to a
standstill. Periods of imprisonment appear
to be on the increase since prisoners withvery short sentences, such as drunk
drivers, are granted alternative sanctions
and prisoners, sentenced for serious crimes,
are receiving longer sentences. This
process of “bi-furcation” [Bottoms] has been
observed in many countries in recent years.
From a historical perspective, theSwedish prison system is, as are its
European counterparts, a rather young
institution. Its rise to prominence can bedated to the first half of the nineteenth
century. At that time, imprisonment was
substituted for the death penalty andcorporal punishment. Originally theprisons, with their roots in the earlymodern workhouses, functioned as an
assembly point for the poor, jobless andmarginalized populace. This function isstill very much alive today. According to a
recent level-of-living survey among
prisoners, only one-third of the interviewed
prisoners had been employed during the
12 months prior to their admission and only
half had had some work during the same
period. Almost all prisoners were in debt.
Tw e n t y - n i n e p e r c e n t h a d n oaccommodation of their own and 15 percentof these were totally homeless. About halfof the prisoners were living alone.
Nineteen percent reported alcohol
problems and 47 percent regular drug use.
Forty-nine percent reported psychologicalproblems and 38 percent suffered fromphysical ailments.
From a structural perspective, thedevelopment of (officially registered)criminality and the use of imprisonment(measured as daily prison population) are
seemingly two independent processes in
Sweden. Even if the data, shown in Figure
1a & 1b, is partially based on estimates, it
becomes clear that the Swedish prison
population has not been determined by thecourse of (known) criminality. Neither isit possible to apply the widely discussed
idea of the ‘stability of punishment’ to the
Swedish system (Blumstein, 1995).
Whether the fluctuating use of
imprisonment has influenced the course ofcrime, is more difficult to answer.
Obviously, prior to World War I there is no
relationship at all. The prison trend was
decreasing, whilst the offence rates
remained stable. After World War I, thepicture changed drastically with more orless stable prison trends, but soaring
offence rates. In the case of theft, which
determines the shape of the offence curveafter World War I, a comprehensive
analysis of the data’s secular trends andinterruption in trends has shown that theSwedish theft data lends very little support
to the deterrence hypothesis in a

305

RESOURCE MATERIAL SERIES No. 57
Figure 1a
Sweden: Number of prisoners (at year-end), 1841-1999.
Remand prisoners excluded. Rate per 100,000 of the population.
125

100

75

50

25

0
1840

1860

1880

1900

1920

1940

1960

1980

2000

Figure 1b
Sweden: Number of registered offences against the Criminal Code, 1866-1999.
Estimated figures 1866-1949. Rate per 100,000 of the population.
15000
12500
10000
7500
5000
2500
0
1840

1860

1880

1900

longitudinal perspective (von Hofer andTham, 1989); a result which reminds us of
the trivial fact that statistical co-variation
does not necessarily imply causality.
Selectected References in English
The Swedish Prison and Probation Service
maintains a website at www.kvv.se[Basic Facts 1997], Basic Facts About
Prison and Probation Service in Sweden.
Norrköping: Kriminalvårdsstyrelsen. [ASwedish government publication.]

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1920

1940

1960

1980

2000

Bishop, N. (1991). ‘Nyköping Closed
Neighbourhood Prison, Sweden’. In
Whitfield, D. (ed.). The State of the Prisons- 200 Years On. London, New York:
Routledge & Keagan Paul.
Bishop, N. (1995), ‘Intensive supervision
with electronic monitoring: a Swedish
alternative to imprisonment’. Penological
Information Bulletin: 8-10.
Blumstein, A. (1995). ‘Crime andPunishment in the United States Over 20
Years: A Failure of Deterrence and115TH INTERNATIONAL TRAINING COURSE
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Incapacitation?’. In Wikström, P.O.H., R.V.
Clarke, R.V., and J. McCord (eds.).
Integrating Crime Prevention Strategies:
Propensity and Opportunity. Stockholm:
National Council for Crime Prevention.
[Crime and Criminal Justice Statistics
1997]. Kriminalstatistik 1997. Sveriges
officiella statistik. BRÅ-rapport 1998:3.
Stockholm: Brottsförebyggande rådet. [ASwedish Government publication.][Correctional Statistics 1997].
Kriminalvårdens Officiella Statistik 1997.
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Lenke, L. and B. Olsson (1998). ‘Swedish
drug policy in perspective’. In Albrecht,
H.J., A. Kalmthout, and J. Derks (eds.).
Current and Future Drug Policies in
Europe. Problems, Prospects and Research
Methods. Freiburg: Max Planck Institutefor International and Comparative
Criminal Law.
Lundquist, A. (1990).
‘Recent
Developments in Swedish Criminal Policy’.
In Bishop, N. (ed.). Scandinavian Criminal
Policy & Criminology 1985 90. Stockholm:
Scandinavian Research Council for
Criminology.

Hofer, H. von and H. Tham (1989).
‘General deterrence in a longitudinal
perspective. A Swedish case: Theft, 18411985’. European Sociological Review: 2545.

Martens, P.L. (1997). ‘Immigrants, Crime,
and Criminal Justice in Sweden’. In Tonry,
M . ( e d . ) . E t h n i c i t y, C r i m e , a n d
Immigration. Comparative and CrossNational Perspectives. Crime and Justice.
A Review of Research. Chicago, London:
The University of Chicago Press.

Hofer, H. von, J. Sarnecki, and H. Tham(1997). ‘Minorities, Crime, and Criminal
Justice in Sweden’. In Haen Marshall, I.
(ed.). Minorities, Migrants, and Crime.
Diversity and Similarity Across Europe andthe United States. Thousands Oaks,
London, New Dehli: Sage Publications.

Svensson, B. (1995). Criminal Justice
Systems in Sweden. BRÅ-report 1995:1.
Stockholm: National Council for Crime
Prevention. [A Swedish government
publication.]

Jareborg, N. (1995). ‘What Kind of
C r i m i n a l L a w D o We Wa n t ? ’ .
Scandinavian Studies in Criminology: 1736.

Somander, Lis (1993), Women Prisoners.
Research paper No. 4. Norrköping:
Swedish Prison and Probation
Administration. [A Swedish government
publication.]

Kriminalvården (no date), The Link to alife free of crime. Norrköping: The Prisonand Probation Administration. [A Swedish
government publication.]

Tham, H. (1995). ‘From Treatment to Just
Deserts in a Changing Welfare State’.
Scandinavian Studies in Criminology: 89122.

Leander, K. (1995). ‘The Normalization of
Swedish Prisons’. In Ruggiero, V., M.
Ryan, and J. Sim (eds.). Western European
Penal Systems. A Critical Anatomy.
Thousands Oaks, London, New Dehli: Sage
Publications.

Tham, H. (1998). ‘Swedish Drug Policy A Successful Model?’. European Journal
on Criminal Policy and Research: 395-414.
Wikstrom, P.O.H. and L. Dolmen (1998).
World Factbook of Criminal Justice
Systems: Sweden. [Internet:

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RESOURCE MATERIAL SERIES No. 57
w w w. o j p . u s d o j . g o v / b j s / p u b / a s c i i /wfbcjswe.txt].
III. ELECTRONIC MONITORING
OF OFFENDERS IN SWEDEN
Since 1994, Swedish authorities have
had the power to use electronic monitoringof sentenced offenders. On a trial basis,
electronic monitoring was first introducedin six court districts and the experiment
was subsequently extended (1997) to cover
the entire country. Since January 1st, 1999
it has been a standard tool under the
Swedish penal system.
1

Background
The political initiative to introduce
electronic monitoring was instigated in
1993 by the then Conservative Minister ofJustice. Although this introduction had
long been debated among experts andunder the previous Social Democrat
government, it had ultimately been
rejected. However the impetus behind thetrial’s extension in 1997 and the final
establishment of the policy came from theSocial Democrat government.
In Sweden there is no political dissent
over the issue of electronic monitoring.
Political parties to both right and left, as
well as the Swedish Green party, viewelectronic monitoring positively. The sameis true of the press. Hearings were held,
as is normal in Sweden, prior to the initial
trial introduction in 1993, and only the
Swedish Data Inspection Board voiced
objections in principle, in part because
electronic monitoring was held to be apreviously unknown intrusion into theprivate domestic sphere. The fact thatarguments based on the integrity of theperson carry somewhat less political weightin Sweden than in other European
countries may in part be due to historicalcircumstances specific to Sweden. The
country has never been occupied by

308

external forces in modern times, and it has
not played an active part in wars since thebeginning of the 19th century. Sweden is
not prone to violent political upheavals andthere is no tradition of radical citizens
insisting upon civil rights. State abuse of
power has little direct relevance as apolitical argument in Sweden.
During the advance work on the firstlaw, the Justice Ministry in charge madeexpress reference to positive experiencesfrom the United States. There was noevidence to the contrary from a European
perspective. The introduction of electronicmonitoring was justified with the following
principle arguments. There was a generalconsensus that periods in prison tend tohave damaging consequences for convicted
offenders, and therefore that the use of
imprisonment ought to be restricted.
Electronic monitoring was felt to allow a
restriction of the offender’s freedom of
movement that closely approximates toimprisonment, thus presenting a suitable
alternative to (short) prison sentences.
Another point in favour of electronicmonitoring was the cost-saving element. It
was not believed that electronic monitoring
harmed the integrity of the person any
more than a full prison sentence.
T h e S w e d i s h p a r l i a m e n t ’s l e g a lcommittee put forward no objections andthe law was passed unanimously inprinciple. The same applied to the later
amendments. The only point of contention
was whether a prison sentence of two, threeor six months should be the upper limit
qualifying for the use of electronicmonitoring.
2

Legal Rulings(Lag (1994:451) om intensivövervakning
med elektronisk kontroll [Law on intensive
supervision by means of electronicmonitoring])

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
It is central to the way that electronicmonitoring is framed in Swedish law thatit does not stand as a sentence in its own
right, but is formulated as a special
implementation of prison sentencing. This
construction is to be understood in termsof the Swedish tradition since the penal
code came into force in 1946, whereby thepunitive element of sentencing wasrestricted solely to the withdrawal of
personal freedom of movement, in place ofother forms of punishment. Approachedfrom this perspective, electronic monitoring
can be understood as withdrawal of
freedom of movement - provided that it is
implemented in such a way as toapproximate to a term in an open prison.
Under the law currently in force, prison
sentences of up to three months can beserved at home under electronic monitoring
instead of in a penal institution. It is not
the court of law but the regionalcorrectional authorities that make thisdecision, in response to an application fromthe convicted offender. If this applicationis refused, offenders can appeal to theadministrative court for a review of thedecision.
The duration of electronic monitoringcorresponds exactly to the length of theprison sentence imposed by the court. The
core of the ruling is § 3 of the law.
Permission to serve the sentence outside a
prison is conditional upon a ban on leaving
one’s home except at specifically statedtimes and for specifically stated purposessuch as paid work, training, medical
treatment, shopping for essentials etc.
Adherence to these regulations ismonitored using electronic equipment. The
person being monitored must refrain fromconsuming alcohol and other drugs
including banned stimulants (§ 4).
Furthermore, assuming the person has anincome during the sentence, a daily fee ofup to 50 Swedish crowns (SEK) is levied,

up to a maximum of 3,000 SEK(approximately 350 USD). The fee ispayable in advance and is directed to thestate crime victims’ fund (§ 5).
In practice, electronic monitoring isorganized as follows: The local state
probation service (part of the Swedish
Prison and Probation Service) conducts aninvestigation of the personal and social
circumstances of the convicted person. The
person must live in appropriate
accommodation with a telephone
connection. They must also have a placeof employment or training, although evenvoluntary work for an organisation or
church group is sufficient. It is a central
prerequisite for the monitored person tohave some form of employment since the
Swedish legislature is expressly against
turning electronic monitoring into a formof house arrest. The agreement of other
adults living in the person’s householdmust also be secured. The person being
monitored makes a commitment to adhere
to the monitoring schedule drawn up andthe conditions imposed therein. All
participants in the monitoring programmemust normally take part in what is known
as a “motivation course” operated by theprobation service to address theconsequences of the crime committed, anddiscuss ethical issues, alcohol and drug use
and conflict management.
Besides the electronic monitoring theperson is also subject to repeatedunannounced personal visits (which may
also take place in the evenings or at
weekends). Supervision also includes tests
for alcohol using automatic breath testing
kits, which transmit results directly down
the telephone line. Urine tests and otherdirect drug tests are also administered.
Electronic monitoring takes place
according to the “active system” (for details,
see Haverkamp, 1998) whereby the person
being monitored wears a transmitter on the309

RESOURCE MATERIAL SERIES No. 57
leg and the signals it constantly emits aretransmitted to the computer in themonitoring centre.
3

Empirical Data
During the trial period, electronicmonitoring has been systematicallyevaluated (most recently in BRÅ [1999]
with English summary). There follows abrief summary of key empirical findings.
In 1998 a total of 3,930 persons were
subject to electronic monitoring, of whom
(in line with expectations) six percent were
women. The majority of them wereconvicted for drink driving (53 percent).
Assault was the principle offence in 21
percent of cases, and property offences, thethird highest category, accounted for eightpercent. In seven out of ten cases, the termof imprisonment was one month or less. In
barely ten percent of cases it exceeded twomonths (in which case - as for normal
prison sentences - release on parole is likely
after two months). One quarter of those
who might legally have been considered forelectronic monitoring did not in fact apply
for it. Some 15 percent of applications wererefused, and around 4,000 people were
finally monitored. The average age of thosemonitored was in the range 31-40 years.
Tw o t h i r d s o f t h e m h a d p r e v i o u sconvictions and somewhat fewer than half
had previously served terms ofimprisonment. In 1998 there were just 200
cases where monitoring had to beterminated prematurely. The principal
cause was - typically for Sweden - violationof the ban on alcohol consumption. The
reoffending rate was studied in the years
1994-95. This revealed that theelectronically monitored offenders were no
more or less likely to reoffend than thecontrol group. After three years, 26 percentof the monitored persons were known tohave reoffended; in the control group thecorresponding rate was 28 percent.

Around two thirds of those monitored
were living with a partner in a joint
household. Twenty percent had children
under the age of eighteen. More than 90
percent of those monitored and over 80
percent of their partners stated that theywould prefer electronic monitoring to a
prison term if faced with the same choiceagain in future. Even the quarter of thosesurveyed who said that they often or nearly
always found it “unpleasant” to wear theelectronic “foot shackle” gave this same
response. The majority of those monitored
viewed electronic monitoring as a lesssevere punishment than a prison term, as
did their partners.
The probation officers interviewed weregenerally very positive about electronicmonitoring but wished for improvements
to the technology and better workplacesupervision of those being monitored.
The cost savings for the year 1997 depending on the method of calculation were put at between 70 and 140 million
SEK (approximately 8 and 16 million
USD). In that year around 3,800 offenders
had been monitored which corresponds tosome 390 prison places in the year as awhole. Furthermore, certain economic
benefits accrue since the person undergoing
electronic monitoring continues in paid
employment. In general it should be notedthat the cost of a prison place in Sweden(and Scandinavia) is high in comparison toother countries (Council of Europe, 1999).
For example, the cost per day of a place inan open prison was put at 150-185 USD
for the years 1997/98.
The evaluation also revealed that only
about half of those being monitored had
paid the daily fee of 50 SEK. In total thevictims’ fund benefited to the tune of some
350,000 USD in 1997.
On its current scale (approximately

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115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
4,000 persons), electronic monitoring
contributes to an annual reduction of theSwedish prison population by between 350
and 400 places.
Two points of criticism were particularly
highlighted in the evaluation mentioned
above (BRÅ, 1999). Firstly, supervision in
the workplace was inadequate - partly fortechnical reasons (the electronicmonitoring is inoperative during working
hours), partly for other reasons: the contact
persons in the workplace do not necessarily
report every infringement of the rules tothe penal authorities. The evaluation
study was critical that the principle ofequality had not been observed. The rulesof electronic monitoring were deemed tohave been applied differently from region
to region. For example, the unannounced
monitoring visits varied between the
different districts from 1.8 to 4.4 visits aweek.
The judiciary criticised the fact that the
final decision on whether to impose
electronic monitoring fell to thecorrectional authorities and not to thecourt. Electronic monitoring was not, in
their view, a special form of executing aprison sentence but a standard
punishment. In its statement, the Justice
Ministry stood by the current solution above all out of practical considerations but left the door open for an amendment
to the law.
4

Further Extensions
As indicated in the introduction,
electronic monitoring is not a politicallydisputed issue in Sweden. Hence it is no
surprise that a range of ideas and proposals
have been put forward for extending
electronic monitoring - in some cases
beyond the confines of criminal law. The
following proposals are under discussion in
Sweden.

Extension to early release
According to the American model,
applications of electronic monitoring canbe categorised by the “front door” and “backdoor” principle. Electronic monitoring
serves on the one hand to curb entries into
prison (the principle currently adhered toin Sweden) and/or to increase releases fromprison. The “back door” principle thus
entails that part of the prison term isserved as a remainder period outside theprison, under electronic monitoring.
Electronic monitoring of prison leave
The Swedish penal system has long
made use of a broadly drawn prison leavesystem. On condition that a positive costbenefit analysis is produced, many are infavour of electronic monitoring but theirmotives are diverse. On the one hand, theleave granted to date can be bettersupervised; on the other hand, certain
categories of prisoner who were previously
unable to benefit from leave, or could do soonly under great restrictions, can be given
the opportunity to interrupt theirsentences.
As an alternative to imprisonment on remand
Electronic monitoring is also
recommended as an alternative to
imprisonment on remand so long as there
is no danger of concealment, and there is
felt to be little risk of the offender ’s
absconding.
As a measure against persons (i.e. men)
who breach the terms of an injunction
In Sweden it has been permissible since1988 for the prosecution service to prohibit
a person for a limited period of time fromvisiting certain other persons, making
contact with them or following them,insofar as it is likely that this person willcommit crimes against the other person orharass them in any way. In the Swedish
J u s t i c e M i n i s t r y, t h e l e g a l a n dorganisational basis is currently being

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RESOURCE MATERIAL SERIES No. 57
examined for the commencement ofelectronic monitoring of those who haverepeatedly violated injunctions. According
to investigations by the Swedish Crime
Prevention Council this would betechnically possible.
5

The Past and the Future
I would like to conclude this summaryof Swedish experiences of electronicmonitoring with a few speculative
thoughts. In many ways the introductionof electronic monitoring in Sweden isreminiscent of the introduction of
imprisonment during the first half of the
19th century. Both periods can beunderstood as times of radical societal
change. At that time the industrial age wasdawning; today it is the electronic age. The
prison as a “spatial” form of control overconvicts was something fundamentallynew, just as electronic monitoring is today.
Both are the expression of previously
unknown technical innovations. Prison
then and electronic monitoring now havenot been issues surrounded by politicaldissent (unlike specific implementations
such as the Auburn and Philadelphia
systems). What prison has in common withelectronic monitoring is that they
incorporate both a progressive and a
repressive potential. The prisons werewelcomed and promoted by philanthropists
as a humane alternative to corporalpunishment, among other things. Long
sentences and harsh penal measures(including isolation and beatings) wereused to appease doubting hard liners.
Electronic monitoring is prized today as asuperior alternative to short prison
sentences but can equally be used to step
up repression. The introduction of prisonscame at a time when new forms of formalsocial control were being developed. In thefirst half of the 19th century organizedpolice forces came into being, institutional
reforms were undertaken and state
education was extended, to name but a few

312

aspects. Modern developments in recent
decades have been characterised by rapid
progress of compulsory pre-trial measures,and Sweden is not alone in this. In parallel,a general breakthrough has been noted in
non-penal areas with strategies formonitoring and recording generalsegments of the population - in private andin public - for instance, via camera andtelevision monitoring, (electronic) records,
user profiles, GPS systems and DNA
techniques (see Wright, 1998).
Modern technology has brought about
the possibility of comprehensive
supervision of the individual citizen. In
drastic terms, the electronic tagging of
livestock is already a reality, and similarregistration of citizens now only remains aquestion of political desirability. How longthe introductory phase will last, and how
all-embracing the ultimate result will be
are questions that cannot yet be answered.
However, electronic monitoring - in one
form or another - will be a ubiquitous
phenomenon in a few generations’ time,
exactly as prisons once became and still
remain; this, to me, seems a near certainty.
SELECTED REFERENCES
Bishop, Norman (1995), “Intensive
supervision with electronic monitoring: a
Swedish alternative to imprisonment”.
Penological Information Bulletin. Nos. 19
and 20 - December 1994-1995, pp. 8-10.
Strasbourg: Council of Europe.
BRÅ (1999), Intensivövervakning med
elektronisk kontroll. En utvärdering av
1997 och 1998 års riksomfattande
försöksverksamhet. BrÅ-Rapport 1994:4.
Stockholm: Brottsförebyggande rådet/Fritze. [With English summary]Council of Europe (1999), Rapport finaled’activité. Conseil de coopération
pénologique. CDCP (99) 18 Addendum I.
Strasbourg: Conseil de l’Europe.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Haverkamp, Rita (1998), “‘Electronic
Monitoring’. Die elektronischeÜberwachung von Straffälligen”.
Bürgerrechte & Polizei/CILIP 60 (2/98).
[http://infolinks.de/cilip/ausgabe/60/
elekhaus.htm]
Haverkamp, Rita (1999),“Intensivüberwachung mit elektornischer
Kontrolle - Das schwedische Modell, seine
Bedingungen und Ergebnisse”.
Bewährungshilfe, Jhrg. 46 (1), S. 51-67.
Wright, Steve (1998), An Appraisal ofTechnologies of Political Control. Working
document. Scientific and Technolocial
Options Assessment, STOA. Directorate
General for Research. PE 166 499.
European Parliament.
[http://
cryptome.org/stoa-atcp.htm]

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CURRENT ISSUES IN CORRECTIONAL TREATMENT AND
EFFECTIVE COUNTERMEASURES
Somboon Prasopnetr*
I. PRISON OVERCROWDING
Prison overcrowding is one of the major
issues currently faced by many countries
in Asia and Pacific region. In Thailand,for example, nearly 200,000 inmates arein prisons with a total capacity of only
80,000 persons. A sharp rise in the inmate
population occurred between 1996 and1999 when numbers doubled from 100,000
to 200,000. Among today’s inmates, 25
percent or 51,039 inmates are involved incourt processes or petitioning appeals.
Another 11 percent are detained during thecourse of police investigations. Among theconvicted inmates, 30 percent committed
light offenses and have sentences of not
more than two years. Other countries in
Asia also have the same prison
overcrowding problem, but may bedifferent on the degree of seriousness. In
some countries in the Caribbean Sea, thenumber of prisoners rose over 200 percent
while the number of those in Western
Europe is over 120 percent in recent years.
Problems as a result of prison
overcrowding have been numerous. Prison
overcrowding not only causes lack of spaceand facilities to accommodate prisoners,
but also a host of other problems for prison
administration. It causes strain on staff
and effective administration. It impedes
the vocational training and othercorrectional programmes. In some places,
inmates have to wait upwards for threemonths on a waiting list to be admitted into
educational or vocational programs
because the number of inmates is too great.

In many prisons, many inmates are
unemployed and have nothing to do.
Proper classification and separation
cannot be practicable in an overcrowding
prison. If classification is to work properly,
there must be some spare capacity in a
prison so that inmates may be allocatedaccording to their security rating and theirtreatment needs. Thus, under theovercrowding conditions it is impossible toimplement any effective ways ofrehabilitation of inmates. The job of justkeeping large number of inmates in prison
is in itself occupies all the prison officers’
time and energy. Furthermore, the wide
spread of contagious diseases in suchcircumstance is inevitable and the U.N.
Standard Minimum Rules cannot beapplied. These lead to the violation ofhuman rights and dignities.
Prison overcrowding also causes tension
and stress among inmates. There are many
research studies supporting this notion.
Mccain et.al1, for example, indicated thathigh degrees of sustained crowding have awide variety of negative psychological andphysiological effects, including increased
illness complaint rates, higher death andsuicide rates and higher disciplinary
infraction rates. Nacci et.al2 also revealed
that high density is associated with highrates of assaultiveness with therelationship being strongest in institutions
housing young adults.

1* Deputy Director-General, Department ofCorrections, Thailand.

314

Q. Mccain, V.C. Cox and P Panlus, Effect of Prison
Crowding on Inmate Behavior, University of Texas,
1980.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The causes of prison overcrowding iscomplicated and varies from nation tonation. The fact is that more people havebeen sentenced to imprisonment but there
are not enough places in prison. This has
resulted in prison overcrowding. The
enormous number of people admitted toprison may be the result of an increase incrime, war on drugs, effective police andprosecution operation, and tougher
sentencing. In some countries there is anunjustifiably large number of crime
categories, such as drugs, in the criminal
law for which long term imprisonment is aform of punishment. Thus, 60 percept of
the inmates population may be sentenced
for drugs related offenses. Moreover, theinsufficient use of alternative forms ofpunishment which could be applied insteadof imprisonment is another factor. In somecountries, if such measures have been
implemented, most judges still look toward
punitive forms of punishment by using
imprisonment.
In the United Kingdom and the UnitedStates of America, many non - custodial
measures or alternatives to imprisonment
have been widely used, the details of which
are as follows:
1. Absolute and Conditional Discharge.
This measure will be used for those
who do not deserve to be punished or
to be put under probation. For
conditional discharge, the offendermust not violate the conditions fixedby the court for not more than 3 years.
2. Binding Over. Instead of punishment
the court may order the offenders tomake a contract with a fixed amountof money which will be forfeited incase they do not come to court on theappointment.
2

P. Nacci, H. Teitelbeaum and J. Prather, Violencein Federal Prisons: The Effect of Population Density
on Misconduct, National Institute of Justice, 1977

3. Fines. This is another measure ofpunishment which the court can use
instead of imprisonment when it isdeemed fit.
4. Probation. Under this measure, theoffenders will be released but they,
have to follow the conditions fixed by
the court and must be under thesupervision of probation officers for
not less than 1 year and not morethan 3 years.
5. S u s p e n d e d S e n t e n c e s o f
Imprisonment. In case the court will
imprison the offenders for not morethan 2 years, suspended sentences ofimprisonment may be used from 1 3 years.
6. Commital to the Care of a Fit Person,
In case the offender is less than 17
years, the court may commit him to
the care of a person who is deemed
fit until he is 18 years old in order toavoid the bad environment which heis confronting.
7. Remission and Release on Licence orParole. For those who are imprisoned
for more than 1 month (except those
who serve life sentences) they will be
eligible for release after 2/3 years of
their sentences have been served.
Parole may also be granted by the
Parole Board to those who havealready served 1/3 of their sentences.
But for those who serve life sentences,
the Minister of Home Office isempowered to grant parole after
discussing with the Lord Chief
Justice, the judge who considers thecase and the Parole Board.3
8. Community Service. This measuregenerally involves public service fornonprofit organisations. It usually
involves the performance of unpaid

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RESOURCE MATERIAL SERIES No. 57
labor by the offender in an attempt
to pay a debt to society, withassignments ranging from cleaning
litter from roadsides and performing
lawn maintenance on government
facilities, to janitorial work inchurches or schools, to building parks
and playgrounds, reparing public
housing and serving as a volunteer
in a hospital or rehab center. The
communities undoubtedly benefit
from the thousands of hours of freelabor, and the city government saves
money by not having to jail someoffenders.
9. House Arrest, Home Confinement orHome Detention. This measurerequires the offender to remain
within the confines of the homeduring specified times and to adhere
to a strict curfew. Additional
conditions, such as restrictions on
visitors and the prohibition of drugs
or alcohol use may also be stipulated.
The offender is normally allowed toleave only for work and reasons suchas grocery shopping, community
service assignment and doctor
appointments. However, the successof house arrest programs has beenbolstered by the use of electronicmonitoring devices which will
enhance the level of supervision
directed toward each offender.
Electronic monitoring uses telemetry
devices to keep track of an offender’s
whereabouts.
10.Day Reporting Centers. These are
non-residential locations at which
offenders must appear, daily toparticipate in programed activities
3

Home Office The Sentence of the Court: A Handbookof Courts on the Treatment of Offenders, (Her
Majesty’s Stationery Office, London, 1978) p.p. 926 and p.p. 38-54

316

and to work out a schedule detailingtheir activities outside the center.
Offenders are also required tomaintain frequent phone
communications with center staff andto submit to random drug and alcohol
testing.
11.Residential Community Corrections.
These include halfway houses, prerelease centers, work furlough andcommunity work centers, community
treatment centers and restitution
centers. Residents may live either
part-time or full-time at such centers,
depending on other conditions set
forth by the court. These types ofcenters may be used as an alternative
to sending an offender to jail or prison
or may be a transitional stop foroffenders just released fromincarceration, to determine if they are
ready to return to society.4
Apart from the lack of front-end options
such as probation suspensions ofprosecution and other forms of alternatives
to incarceration, the lack of back-end
options such as parole, pardon or sentence
remission is also another factor for prison
overcrowding. The insufficiency or the lackof back-end option to release inmates fromprisons may be due to limited opportunity
for early release or release on bail, or
substituting imprisonment for a morelenient punishment. In Thailand, forexample, there are many restrictions forparole application especially for those whoare drug traffickers. Royal Pardon cannot
be implemented as frequently as it used tobe. Part of the factors for this restrictionis the hardening attitude of the public
including criminal justice personnel
4

Norman A. Carlson, Karen M. Hess and Christine
M. H. Orthman Corrections in the 21st Century: A
Practical Approach, (An International Thompson
Publishing Company, U.S.A., 1999) p.p. 157-163

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
towards crimes and offenders which isreflected in the demands for the use of moreharsh punishment.
The most easy solution to prison
overcrowding is obviously to build moreprisons, but it is very expensive and is not
the right way to solve the problem.
However, many countries use this methodby building more prisons year by year.
Some countries may use similar methods
by converting unused facilities or
expanding current prisons in order to havemore capacity. It is not surprising that
more and more prisons have been built in
Asia and the Pacific for the past decade.
This solution presupposes the notion thatthe institutional treatment of inmates isthe only effective measure to solve thecrime problem. But it has been long provedthat this is not true. The more we built
new prisons, the more imprisonment will
be used. In order to alleviate the problem,
more alternatives to incarceration must be
used, especially for those who are first time
offenders or commit minor offences.
Moreover, bail should be granted more forunconvicted offenders and imprisonment
must be used as the last resort and for those
who are habitual or professional criminals
only.

2. Improve access to, andco - ordination within, thecriminal justice system
Increasing public access to the police,
courts and prisons engenders publicconfidence and transparency. Coordinating and streamlining the work of
the criminal justice agencies assists both
efficiency and compliance withinternational human rights standards.
3. Invest in crime prevention andcrime reduction
Problem solving partnerships between
the police, other public agencies, businesses
and communities can produce effectiveplans to reduce the risk factors which lie
behind much crime drug misuse, family
difficulties, school failure, unemployment.
4. Divert minor cases from thecriminal justice system
Many cases can be effectively dealt withoutside the formal criminal justice system.
5. Reduce pre-trial detention
In some countries as many as 75% of theprison population may be awaiting trial.
Alternatives such as bail and regularreviews of cases can reduce pre - trial
detention.

At the Tenth United Nations Congresson the Prevention of Crime and theTreatment of Offenders in Vienna on April
2000, the Penal Reform International
Organisation introduced a 10 point plan toreduce imprisonment. These points wereas follows:

6. Develop constructive alternatives
to custodial sentences
Courts need sentencing options that are
effective and not just a ‘soft option’: without
alternatives, imprisonment as apunishment of ‘last resort’ becomes
commonplace.

1. Inform public opinion
Increasing use of imprisonment is often
blamed on public demand for punishment.
Yet the public are often misinformed about
how the system operates and will support
effective non-custodial measures.

7. Reduce sentence lengths andensure consistent sentencing
practice
Sentencers need guidance to deter
inconsistent sentencing practices.

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8. Develop, special arrangements
for youth offenders that keepthem out of prisonChildren in conflict with the law (under18) should be diverted from the criminal
justice process. A term of imprisonment
should be strictly a measure of resort andfor the shortest appropriate period of time.
9. Treat rather than punish drug
addicts and mentally disordered
offenders
Courts should be able to order treatment
for those whose crimes are often committed
to feed their addiction. Prison is not asuitable institution for mentally ill people.
10. Ensure the system is fair to all
Imprisonment
impacts
disproportionately on the poor, thedispossessed and minorities who facediscrimination outside. Monitoring shouldtake place at every stage of the criminal
justice system to ensure that
discrimination does not take place and thatthe efforts to reduce imprisonment
suggested in this plan are made in respectof all members of the community.
In my opinion, the first recommendation
on informing public opinion is very
important. The public’s demand for harshpunishment leads to longer sentences
imposed by the courts and opposition to any
kind of leniency in punishment. Thus,
imforming the public about the advantagesof non-custodial measures is necessary.
However, recommendations concerning cooperation from, the courts to reduce pretrial detention and to use more alternatives
to prisons may long be expected in somedeveloping countries. On the other hand,a law is needed to provide sentencing
options for non-custodial measures and torequire judges to use such alternatives
unless there is an exception according to
the law. Short term sentences should not
be allowed to be imposed on inmates, rather

318

probation or other measures of community- based corrections should be implemented.
In sum, the problem of prison
overcrowding can only be alleviated byusing more alternative measures toincarceration especially for those who are
not habitual or professional criminals.
Building more prisons is not an answer tothe problem. In this connection, theamendment of the law to require judges touse such alternatives in case there is no
exception is necessary especially in somecountries where judges are prone to use
only imprisonment as a main measure ofpunishment. Furthermore, making thecourts responsible for speedy trial andexpanding various forms of alternatives toimprisonment is also recommended.
Lastly, the public should be well informedof the disadvantages of short-term sentence
which will have bad effects on the offenderrather than good ones. He has to lose hisjob, social status and family. Morever, he
may have the tendency to commit morecrimes in the future as a result of having
an opportunity to learn the criminal careerfrom his friends during incarceration. In
this connection, the public should be
informed of the advantages of communitybased correction which have lower costs
than incarceration while the offender’swork, social status and family are notcontaminated. This will reduce the public
attitude of using only imprisonment insome countries.
II. IMPROVEMENT OF PRISONCONDITIONS
It is recognized that inmates are humanbeings and they deserve to be treated with
dignity and respect so that they can be
resocialized to become more responsible
people. In this respect, the improvementof prison conditions is very important for
the rehabilitation process of the inmates.
Overcrowding, lack of hygiene, un-sanitary

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
conditions, HIV and other infectious
diseases, should not prevail in the prison.
Inmates should be ensured the adequacyof medical and other services should be thesame as outside including living condition.
Furthermore, they should be provided withindividual assistance and opportunities todevelop their own potential with a view toreintegrate as normal citizens. Therefore,
contacts with the outside world are an
essential part of their reintegration into
society.
Many countries in Asia and PacificRegion are now confronted with the issue
of prison conditions. Prisons in thesecountries have been built for many years
and usually are overcrowded. Thus, prison
conditions in many countries in this region
continue, to fall short of the United Nations
and other acceptable standards. These
problems are the main obstacles of thefulfillment of the Standards.
The United Nations Standard Minimum
Rules for the Treatment of Prisoners
constitute a landmark in the process ofprison condition reform. They have had asignificant impact on the law and practices
of many countries in the regions. However,there are some problems related to theimplementation of the U. N. Rules.
The major problem is overcrowding.
Prisons in Asia, in general are overcrowded.
This issue directly affects the prison
condition and the implementation of the
U.N. Rules. When more people are being
sentenced to imprisonment accompanied
by a decrease in the number of places inprison, the result is prison overcrowding
and a deterioration in living conditions inprisons. Overcrowding may contribute tohigher levels of violence and increase
spread of illness such as AIDS,
Tuberculosis and other infectious diseases.
Classification of prisoners cannot be
carried on because there are no places tosegregate them. This problem also affects
both institutional management and official
satisfaction. Thus, under thesecircumstances any standards cannot beapplied.
The social context is also important. For
example, prison officials are generally
affected by the public, social and political
attitude. Particularly in the developing
countries where aggressive feeling stillprevails in the community, the group of old
and unprogressive prison staff are mostly
affected. It is impossible to pension themoff and to recruit young progressive ones.
The idea of arranging training courses forthe old guards to assume new roles inprogressive prison administration is founduneffective. Therefore, the aim to promote
progressive treatment following theStandard Minimum Rules will need arather long time to achieve. The
administrators of prisons have to accept
means of gradually helping old staff topension off sooner and to replace them withnew young progressive recruits.
Related to the problem of overcrowdingis the lack of financial resources of many
countries to upgrade the prison conditions.
The lack of financial resources to build a
new and modern prison to replace the oldone. There is also a lack of funds tofacilitate the implementation of modern
correctional programs.
The fourth problem is theimplementation of the U.N. Rules which
may be too expensive. In many countries,
not all of the Rules are applicable in allplaces and at all times because of the great
variety of legal, cultural, geographicalconditions and wealth. It seems to me that,
if the Rules are too expensive, it is difficult
for the poor countries to implement. In
these countries the U.N. Rules may beoverlooked owing to the shortage of budget
to improve the living standards of inmates

319

RESOURCE MATERIAL SERIES No. 57
and also to build standard prisons. Under
this circumstance, the implementation of
any standard rules cannot be expected.
Prison is only the place to detain criminals
while deteriorated living conditions are
neglected.
The most important problem for the U.N.
Rules implementation is the lack ofmechanisms to encourage and enforce
country members to follow. It has only
paper - based reporting mechanisms which
are not effective. Thus, every country
should be encouraged to have supervisory
mechanisms and regular inspection at
national and local levels. Suchmechanisms should be used by bothgovernmental and non - governmentalorganizations.
From my conclusions, prison conditions
are very important for prisoners’
rehabilitation and human rights. They
should be treated as normal persons, so
their living conditions must not be different
from those outside. To achieve theobjective, many problems have to beeradicated.
1. The problem of prison overcrowding
must be solved by using more non custodial measures or alternatives toimprisonment or community - based
corrections especially for those whoare not habitual or professional
criminals.
2. The U.N. Standard Minimum Rules
for the Treatment of Prisoners andRelated Recommendations and otherStandards should be trained to all
prison staff including theadministrators and the new recruits
in order to gain cooperation for the
implementation as much as possible.
3. The improvement of prison conditions
should be regarded by the320

Government of each country as amajor problem of development, In
this connection, financial supportshould be granted to the concernedorganisations for such matters. In
most developing countries, prison or
correctional work has been neglectedor regarded by the Government as
least important. This will surely
impede the improvement of prison
conditions since the budget will not
be allocated.
4. Since the U.N. or other standards
may not be suitable for all countries
according to the difference in legal,
cultural, geographical conditions andwealth as having been stated above,all countries should have their own
suitable standards by using the U.N.
and other standards as theframework. In fact, we cannot denythat there is no unique standards
which can be used by all countries in
the world.
5. I n o r d e r t o e n s u r e t h eimplementation of such standards orthe improvement of prison conditions,
all countries should be encouraged tohave supervisory mechanisms andregular inspection by bothgovernmental and non-governmentalorganisations at national and local
level. The inspection organisations
should be independent and caninspect at all times without informing
beforehand. After the inspection, areport should be submitted to therelated organisations for theirremedies. Opening prisons toinspection and outside scrutiny
promotes transparency andaccountability and so better ensuresthat prison rules are put into practiceand that prisons are safer places for
all concerned.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
III. FOREIGN PRISONERS AND
PRISONER TRANSFER TREATIES
Foreign prisoners incarcerated in othercountries, is now becoming one of the most
crucial issues facing correctional
administrators all over the world. The
increasing tourism industry, migrating forjob opportunities, and the changing
economic and political regime haveincreased the number of people travelling
and working abroad. As a result, thenumbers of people involved in crime related
to drugs, illegal entry, credit card fraud etc.,
have increased sharply. These offenders
are arrested and incarcerated abroad andhave to face cultural differences as well as
unfamiliar food and living conditions inforeign prisons. Moreover, they frequently
face the difficulties in communication withprison officers and other prisoners as wellas lack of qualified lawyers and inadequate
medical care. Foreign prisoners, on theother hand, cause economic andadministrative burdens for prison
administrations in many countries.
One of the most effective methods tosolve the problem of foreign prisoners is theprisoner transfer treaty. Although thetreaty itself does very little in solving the
problem of prisoners while they are inforeign countries, it does allow theseprisoners to return home to serve the restto their sentences. At present, there aremany countries engaged in these treaties,
both by multilateral and bilateral treaties.
A. Multilateral Treaties
For multilateral treaties, a group ofcountries join together to make anagreement on transfer of prisoners. They
agree to follow the same conditions andprocedures. There are many groups ofcountries participating in multilateraltreaties on transfer of prisoners. The
Council of Europe Prisoner Transfer Treaty
is an example. It has many countries, notexclusively for members of European
states, that participate. The Organizationof American States (OAS) Prisoner
Transfer Treaty is another example thatinvolves all countries in the North andSouth American continent. This treaty isdifferent from other treaties in that theinitial request for transfer can be started
by either the sentencing state, or by theadministering state.
The oldest cooperation in theenforcement of foreign penal judgement
was among Arab countries. However,prisoner transfer treaties among thementered into force in 1985.
The Arab prisoner transfer treaty does
not require the consent of the sentenced
person for this transfer. The transfer isallowed if the following conditions are met;a) the sanction imposed involves
deprivation of liberty, the minimum
term of which, to be served is no lessthan six months;b) the penalty has been imposed for an
offence for which extradition may not
be granted;c) the offence is punishable in theprisoner ’s home country withimprisonment of no less than six
months;d) both the sentencing and enforcing
states agree to the transfer5
Perhaps the biggest number of countries
involved in prisoner transfer treaties is theprisoner transfer treaty of the British
Commonwealth countries. This treaty
links upwards of 35 countries in all partsof the world. The prisoner transfer treaty
among African countries involves 15
countries. Although the treaty provides forthe extradition of both accused and5Richard D. Atkins (ed) Prisoner Transfer Treaties:
A Practical Guide, International Legal Defense
Counsel, Philadelphia, Pennsylvania U.S.A. 1995

321

RESOURCE MATERIAL SERIES No. 57
convicted offenders, it is also applied to thetransfer of prisoners.
B. Bilateral Treaties
In case there is no available multilateraltreaty, individual countries have toapproach other countries for negotiating
bilateral treaties. Thus, conditions andprocedures for transferring prisoners ofeach country may differ from anothertreaty depending on the negotiation of theparties. Thailand, for example, has
negotiated separate treaties with many
countries. Each treaty is unique. The firsttreaty of prisoner transfer between
Thailand and the U.S.A., was signed on
October 29, 1982 and became effective
afterwards. Today, Thailand has alreadysigned treaties with many countries. The
treaties that have been ratified and comeinto effect are the treaties with theserespective countries:
France; effective in 1985.
Spain; effective in 1987.
Canada; effective in 1988.
United Statesof America; effective in 1988.
Italy; effective in 1990.
Sweden; effective in 1990.
Great Britain ; effective in 1991.
Finland; effective in 1992.
Portugal; effective in 1994.
Austria; effective in 1994.
Germany; effective in 1996,
Poland; effective in 1999.
Denmark; effective in 2000.
To d a t e , 2 3 0 f o r e i g n p r i s o n e r s
incarcerated in Thai prisons weretransferred to their home land, and 5 Thai
prisoners were transferred back to carryout their sentences in Thailand.
According to the Thai Legislation ofProcedure for Cooperation between Statesin the Execution on Penal Sentences. B.E.
2527 (1984), the general principle of322

prisoner transfer is based on:
1. A person sentenced in the territoryof one party may be transferred to theterritory of another party.
2. A transfer of prisoners should be
effected in cases where the offense
giving rise to conviction is punishable
by deprivation of liberty by the
judicial authorities of both thetransferring state and receiving
state.
3. The offender is not sentenced in
respect of an offense under the lawof Thailand:
3.1 against the internal or external
security of the state;
3.2 against the monarch, his consort
or his sons or daughters; or
3.3 against legislation protecting
national art treasures.
4. The sentence imposed on the offenderis one of imprisonment, confinement
or any other form of deprivation ofliberty in any institution.
4.1 for life;
4.2 for an indeterminate period on
account of mental incapacity, or;
4.3 for a fixed period of which at least
one year remains to be served at
the time of the request fortransfer.
5. The offender has served in thetransferring state any minimum
period of imprisonment, confinement
or deprivation of liberty stipulated by
the law of the transferring state; (Forlife sentences, he has to serve 8 years
and for other sentences, he has toserve 4 years)
6. The judgment is final and no further
legal proceeding relating to theoffense or any offense is pending in
the transferring state;
7. The transferring and receiving states
and the offender all agree to thetransfer. In transfering the prisoner,
all expenses will be met by thereceiving state.

115TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
C. Problem of Prisoner Transfer
Treaties
There are many advantages of prisonertransfer treaties. First, they facilitate thesocial reintegration of the prisoner bypermitting persons convicted of a crime in
one country to return to complete theirsentence in their familiar living andcultural conditions. Prisoner transfer
treaties also remove an economic andadministrative burden for prisons in many
countries. Taking care of foreign prisoners
causes a lot of prison administration
problems in term of communication withprisoners and provision of food and medicalcare. Prisoner transfer treaties, however,
have some difficulties in implementing.
This is due to the difference between thelaw and penal sanctions of the participatedcountries. Some sentencing states, forexample, may have severe punishment for
drug offences while the administering state
has less severe punishments. In suchcases, prisoners may be transferred toadministering countries just simply to bereleased earlier because the receiving stateis empowered to enforce the rest of thesentence according to its law. For example,
a prisoner in the U.S.A. will be eligible forparole after 1/3 of his sentence has been
served while in Thailand he has to serve
2/3 of his sentence. In another case,prisoners were transferred to convert thesentence term in court of the administeringcountries. The Council of Europe suggeststhat if the sentence imposed was longer
than or different in nature from thesentence which could be imposed for thesame offence in the home country, it would
be adapted to the nearest equivalentsentence which was available under thelaw in the home country without being
longer or more severe than the original
sentence. Two potential difficulties can beseen with this approach. Firstly, theforeign prisoner will not know the lengthof his sentence until transfer and therefore
may find it difficult to decide whether or

not to apply. Secondly, it is probable thatin some cases the period already served in
the foreign country will be equal to or
greater than the converted sentence in thehome country with the result that thetransferred prisoner would be immediately
released. This is likely to undermine
confidence in the integrity of the transfer
scheme and may even be seen as
interfering with, or criticising, the criminal
justice system of another country.6 While
there are some difficulties related to theimplementation of the treaties, prisonertransfer treaties bring about international
cooperation and understanding and should
be promoted to expand to countries
worldwide.
Bibliography
1. Australian Institute of Criminology,
Trends and Issues in Crime andCriminal Justice, Canberra, 1992.
2. Home Office, The Sentence of the
Court: A Handbook of Courts on theTreatment of Offenders, (Her Majesty’s
Stationary Office, London, 1978)
3. Norman A. Carlson, Karen M. Hess andChristine M.H. Orthman, Correctionsin the 21 st Century: A Practical
Approach, (An International Thomson
Publishing Company, U.S.A., 1999)
4. P. Nacci. H. Teitelbeaum and J. Prather,
Violence in Federal Prisons: The Effectof Population Density on Misconduct,(National Institute of Justice, U.S.A.,1997)
5. Q. Mccain, V.C. Cox and P. Paneus,
Effect of Prison Overcrowding on
Inmate Behavior, (University of Texas,
1980)
6. Richard D. Atkins (ed.), Prisoner
Transfer Treaties: A Practical Guide,(International Defense Counsel,
Philadelphia, Pennsylvania, U.S.A.,
1955)
6

Australian Institute of Criminology, Trends andIssues in Crime and Criminal Justice, Canberra,
1992 p.p. 3-4

323

PARTICIPANTS’
PAPERSRESOURCE
MATERIAL SERIES
No. 57CRIME PREVENTION: CURRENT ISSUES IN CORRECTIONAL
TREATMENT AND EFFECTIVE COUNTERMEASURES
Muhoro Peterson Kamunyu*
I. INTRODUCTION
In the recent past, the correctional
services in Kenya have been in the print
and electronic media spotlights. They havereceived critical appraisal that sometimes
has been outright negative. They havebeen as it were stripped and laid out forvery close scrutiny:“Naked inmates shock judges inprison visit” screamed the East
African Standard of 4.11.99 front
page. “Woman jailed for seven years
for stealing husbands cow” - Daily
Nation - 4.11.99
The editorial leadership of the print
media has also argued against the excess
and the rot that is currently to be found incorrectional institutions. The concern
shown leaves one wondering whether allthese shortcomings have been there allalong with nobody noticing or it is the old
fashion of bashing public institutions withcorrectional institutions providing an easytarget. The following discussion istherefore an attempt to add to the debate
by objectively looking at the critical issues
in this drama. I have therefore examined
the following areas: i) Difficulties in developing effective
rehabilitation programmes inprisons.
ii) The current and cumulative logisticalproblems faced by correctional
administrators.
iii) Suggested remedial strategies andtheir limitations.
*

Director Probation and Aftercare Service, Kenya

324

Ideally a man is born free and thesojourn in life is a social drama in pursuitof enjoyment of that freedom. The social
norms from onset reinforce this being “free”
status. This is so until the long arm of thelaw of the land catches up withtransgressors and the law breakers and foronce the freedom is taken away. The
punishment as often is the case - isautomatic exclusion and separation fromthe rest of society and being placed undercharge of a correctional institution. Within
the institutions are well rehearsed andregimented roles, rules and regulations.
The offender of necessity has to adjust to
the new status and fit into a new life - life
inside the prison walls. This process offitting into a new life is gradual, thoroughand ends up abolishing the individualism
and privacy - values that one has long beensocialised into.
Prisons by design are places where
offenders are sent down as punishment.
They are meant to epitomize both theretributive and deterrence principles ofsentencing. The architecture and social
aloofness further reinforces this feeling ofpunishment. Also prisons are places where
hardships are inevitably occasioned
whether by design, deliberate or otherwise.
The deprivation of personal liberties, thedenials of the basic choices in life, thewithholding and withdrawal of basic
privileges. All the basic issues that findexpression in ordinary life are controlled
and sparingly provided.
Prisoners soon learn the art ofconforming to the expectations of custody.
Prison stay only makes sense depending
on ones ability to quickly adjust and115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
assimilate the social life in prison. In so
conforming, the offender is able to copewith the pains of imprisonment.
Adjustment by offenders translates itself
into various social relationships. Decision
making on the most basic chores androutines is regimented. Orders are issued
out and obedience extracted. Soon enoughan offender is institutionalised into amechanical actor to programmed
commands. The more an offenderassimilates into the social life in prison, themore he/she becomes dependent on thefavours conferred by correctional services.
The institutionalisation bonding on theoffender creates dependence complex thatnegates any long-term rehabilitation
efforts. Prisons therefore looked at fromthe theoretical framework have in built
such heavy odds that deny offenders an
opportunity or a chance with reasonableprobability for rehabilitation. As is often
quoted, it is not possible to rehabilitate
offenders in situations of captivity.

II. CURRENT ISSUES IN PRISONS
The issues that have brought prisons
into close focus relate to:-Over-crowding in prisons
Old and dilapidated prisons

A. Overcrowding in Prisons
There are 78 prison establishments in
Kenya. Their capacity is indeterminable
and they are stretched to accommodate
anybody convicted to serve a prison term.
It is however generally agreed that with
between 33,000 to 40,000 daily average
prison population; the prisons in Kenya arein some cases 100% - 150% overcrowded.
The prisoners are:8,000 - 10,000 - in custody- awaiting trial- awaiting sentence or- awaiting repatriation
25,000 - 30,000 - c o n v i c t e d a n dsentenced prisoners.
The growth of prison population has
been rapid and the trend has been upwardwith no peak in sight. This could partly be
accounted for by the actual population
growth which reflects that up to 46% of
Kenyans are aged 24 years and below.
It is also true that by tradition and due
to absence of effective and extensive noncustodial sanctions, imprisonment as acustodial sentence has been extensively
utilised by the courts. Unlike any othersentence, custody has a high public profile
relative to other sentences. With arelatively young population, it ispredictable that potential for more people
being sentenced to prison in future is high- very high indeed given the population
living below poverty line.
The rapid population growth; arelatively large proportion of youthful
population, a poorly performing economy;
and the courts preference for custodysentence and we have an ideal recipe for
prisons overcrowding. Prisons overcrowding means the facilities meant for few
are increasingly stretched to cater for more
and more prisoners. It is a common sayingthat prisons never fill up. What is a fact isthat physical utilities in prisons are overused, over utilised, over-stretched and theconsequent wear and tear is fast andevident. Prisoners are therefore left toshare minimum of everything - food,clothing, sleeping space, exercise space,
and welfare is limited to the bareminimum. Overcrowding generally
prevents realisation of any planned
utilisation of prisons resources, facilities
and leads to otherwise uncalled for
restrictions. This is the unending cycle of325

RESOURCE MATERIAL SERIES No. 57
overcrowding leading to decrease resources
leading to overcrowding in prisons.

picture is not as gloomy as it has been
printed so far.

B. Old and Dilapidated Prisons
Majority of the prisons institutions in
use today were built in 1920’s, 1930’s and1940’s. They were built during the heydays of colonial authority in Kenya. Today,
the same prisons are found in many
districts - same architecture, sagging walls
and a perimeter barbed wire fences.

III. CURRENT PRISONSPROGRAMMESSuch physical facilities incur heavy
maintenance costs, are problematic tomaintain in hygienic conditions as
demanded by public health act and in mostcases are a public eye sore. They are
degrading settlements to live in both forthe prisoner and prison officer. The obvious
solution to these old prison institutions is
to embark on building new modern prisons.
This however is an expensive venture anddoes not attract goodwill in times of scarce
resources allocation.
Overcrowding in our prisons coupledwith old dilapidated prison buildings leads
to: i) Unhygienic living conditions which
often lead to outbreak ofcommunicable diseases. The
incidence of skin diseases, water andair borne diseases is symptomatic of
this problem.
ii) U n d e r f e d , m a l n o u r i s h e d a n dweakened prisoners who are likely to
succumb to illnesses.
iii) Poorly clothed prisoners.
iv) High incidences of aggressive
tendencies of prisoner to prisoner or
prison officer to prisoner.
Given such heavy odds, it is a difficult
task for correctional administrators tomount effective rehabilitation
programmes. This however does not meanthat efforts are not made. Indeed the326

A. Prisons Farming Activities
Kenya is basically an agriculturalcountry. The majority of the population
derive their livelihood from agriculture andagricultural related activities. Land as aresource is therefore central to majority of
Kenyans social-economic engagements.
The prisons service controls a sizeable land
estates - some of it in prime agriculturalareas. Farming in prisons is therefore
potentially a major activity for theprisoners. A lot of efforts are made to
produce basic foodstuffs viz; maize, beans,rice, bananas, fruits, vegetables. Livestock
farming is also encouraged especially in low
rainfall places. A combination of unpaid
labour, rent free farmlands and trained
prison officers should ideally produce
enough to create a surplus for the market
place. The results in appropriation in aid
realised however reflect dismal returns.
In spite of this, prisons farms have apotential to feed the prisoners and realise
surplus for sale. Such proceeds could inturn be ploughed back into welfare
activities that could lessen the negatives
on prisoners’ lives and brighten the dullcorrectional lifestyle.
B. Prisons Training Activities
Our prisons are reknown for producing
top class products. The carpentry
workshops, weaving tailoring, masonry,
blacksmith, printing are some of the skills
taught to prisoners. Indeed some of the
products from prison industries competefavourably in the market place. In 1999,
prisons stand in Nairobi Agricultural show
was awarded first position against stiffcompetition. From the major prisons,medium and small workshops keep the

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
prisoners busy. With unpaid convict labour,
qualified instructors and a controlledenvironment, prisons produce goods whose
value would offset any cost, however, prison
industries do not generate any sizeable
revenue - why is this?

reinforced genuine character change ispossible. Such spiritual appeal to beeffective has to be launched, managed andrun by existing community religious groups
rather than being tied to the regimented,
correctional programme.

A reasonable guess is: -D. Prisons Welfare Service
The Prisons welfare services were
established to create a linkage between theprisoner and the outside world. The
welfare officers are meant to keep bridges
between the prisoners and their families
or any other relations. Hence the welfare
services is staged and run by civilian staff.
The scope, effectiveness and efficiency of
welfare units in prisons are doubtful. Often
times, the greatest problem is lack of funds
to sustain welfare activities that aremeaningful and of benefit to the prisoners.

-

demotivated prisoners
lack of marketing skills by prison
authorities for their products
wastage occasioned by training

Majority of the prisoners have left
custody with improved skills on various
trades. It is however doubtful whether they
engage in the same trades once out ofprison. One reason is that majority ofprisoners learn these trades and perfecttheir skills through force of circumstancesand not through their voluntary individual
choice. The interest is therefore sustained
as long as they are in prison.

C. Prisons Spiritual Guidance andCounseling
The Kenya Prisons spiritual guidanceand counseling services are now recognised
as having positive inputs. Based on thereligious crusade of reclaiming lost soulsof the sinners/offenders, all the majorreligious denominations have set up basein prisons and do provide religious
teaching, guidance and counseling services
to prisoners. In some instances theprisoners do have character change from
criminality at least as they confess while
in prison. Whether they maintain the same
positive characters after their sentences
are over is another issue.
It is true, one dimension of any person’s
culture is the religious believes and values
attached to it. Without even compounding
rehabilitation, it is possible to appeal to theprisoner’s soft spot and if systematically

There is also the old issue of welfare
officers who are advocates of generic social
work practice, principles and ethics ofsocial work being relegated to work within
the limits of prison walls. Whatever thegood intentions there remains conflict ofinterests. For example the principle ofconfidentiality is difficult to keep. What
information is one duty bound to disclose
to prison authorities?
It would be better perhaps for thewelfare units to operate from outside theconfines of prison walls i.e. creating rapportof the community so that the eventual
prisoners resettlement is easy and smooth.
These and many other issues continue
to hamper the welfare services in prisons.
IV. OTHER SENTENCING OPTIONS
Any discussion of the merits or demeritsof custodial sentences, the pros and consof imprisonment and advantages or
disadvantages end up looking at theavailable alternatives.

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RESOURCE MATERIAL SERIES No. 57
These alternatives are;-Diversion strategies during the pretrial stage.
Non-custodial sentencing options
during the pre-sentence stage.

A. Diversion
Criminal justice process starts fromarrest of suspect, through arraignment incourt, trial conviction or otherwise,
sentencing and punishment. Diversion
refers to deliberate intervention
mechanisms put in place to offload
suspected offenders from reaching the final
stage of conviction and sentence. The
diversion could be facilitated by the policearresting arm of the Government, theprosecutors or the trial court. At any stage
during the process, the preferred charge
can be terminated and the suspect let off
with a warning, caution or an order to keep
peace over a given time. The objective ofany diversion is to stem off categories ofpetty persistent offenders, youthful
offenders, misdemeanour range ofoffenders and other nuisance offenders
from clogging the criminal justiceadministration. All these categories whenaggregated amounts to quite a sizeable
number who would otherwise be tried witha possibility of conviction and most likely
imprisonment.
Diversion is therefore a useful strategy
if properly implemented. So far however,the statistics available reflect a negligible
practice. It is therefore not uncommon forjuvenile offenders to be overcrowded inapproved schools, borstal institutions andother remand centres. This would not be
the case if diversion was used to asignificant level.
B. Non-Custodial Options
Non-custodial sentences range fromfines and other monetary penalties,

328

conditional and unconditional suspended
sentences, probation orders, community
service orders; each of which is outlined
hereunder:i)Fines:The use of monetary penalties is now
recognised as expedient and processes alarge proportion of offenders in any given
court. The monetary penalty as a penal
sanction assumes among other things that:“an offender is penalised proportional tohis/her earning capacity”
Often however, the fines are dispensed
by magistrates and are dependent on
subjective discretionary considerations.
There are not set guidelines to standardiselevels of the fines awarded and therefore
avoid excesses. As mentioned earlier,majority of the population are living below
the poverty line. Add another lot who arein economically precautious position andthe proportion who cannot afford to pay
fines increases. To compound the fine as a
viable option is the fact that is given as analternative to imprisonment thus:“So much to be paid or in default so manydays/months/years to be served in prisons”
Majority of such offenders are unable toredeem themselves and end up in prison.
Fines as a sentence remains the mostmisapplied and inconsistent in penal
intention. A common offence of stealing forexample attracts a fine whose range andvariation is so wide that it is unjust. It is
however the case that fines account for thelargest proportion of courts sentences - over
70% in some cases in any given year.
Assuming an effective and efficient fines
collection and management, more offenders
could be cleared using this option than ispresently the case.

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERSii) C o n d i t i o n a l a n d U n c o n d i t i o n a l
Discharges
The courts even after declaring a guilty
verdict have the option of awarding
conditional or unconditional discharge
depending on each case. The courts havewide discretionary powers in deciding
conditional or unconditional options. Thisis an opportunity the courts could use todischarge all those found guilty but who
have proof of ill health or terminal
illnesses. Rather than load prisons withsickly prisoners; the courts could use theirdiscretionary powers to allow such people
to be taken care of by their relatives andsuspend all such cases with other orders
as each merits. More importantly, thecourts could demystify conditional andunconditional discharges by offering
reasons behind such decisions in an open
court to stem off speculative concerns by
the public.

probation office existing alongside a court
establishment. This arrangement ensuresthat the court orders requiring information
are expediently attended to.

As it is the case, unconditional andconditional orders of the courts aresparingly utilised and the overall impact
is not significant. The contention here isthat these orders can meaningfully be usedespecially if for all such cases there is anaccompanying pre-sentence social report.

For any social report submitted to court,
it is entirely left to the discretion of thecourt to make a probation order or any
other sentence. To release or not to releaseis once more the discretion of the courts.
The concurrence level between therecommendations made in reports andeventual sentence given is 60% - 75%. Thisis an indication that the social reports dohave a bearing on sentencing.

iii) Probation Orders
Probation orders are empowered under
the Probation of Offenders Act, Chapter 64- Laws of Kenya. This act was passed on
12th December 1943 and probation services
were formally in use from 1946. Since then,the courts have utilised probation orders
as an alternative to custodial sentencing.
Overtime the proportion of probation
orders relative to custody has stayed as aratio of “one probation order for every four
to five prison sentences”.
The structure put in place to implement
this non-custodial court order covers thewhole range of offence spectrum and isestablished in the whole country with a

The Probation services has been
providing this information as reflected in
the following statistics: Year
1995
1996
1997
1998

Enquiries
Conducted
10,507
10,497
9,652
9,903

Order Percentage
Made
7,624
75.6
7,804
74.3
7,204
74.6
7,274
73.5

Provision of information to courts is acore function and a major pre-occupationof probation officers. Expenditure incurred
gathering information accounts for up to
one third of the time and other resources
available to the Department.

The cases awarded probation orders
u n d e r g o c o m p u l s o r y, m a n d a t o r ysupervision period of six months to three
years depending on the circumstances ofeach offender. This supervision period
confers necessary contact between theprobation officer and the probationer.
Coupled with the conditions listed in theorder, probation officer is able to use subtle
social work skills to extract conformity andcorrect behaviour.
The contact period is therefore the basisof social work arrangements that are

329

RESOURCE MATERIAL SERIES No. 57
deemed useful and beneficial to theprobationer. Probation orders as practised
have the following advantages going for
them:
-

-

-

-

-

-

Probationers remain based in thecommunity during the duration of theorder.
Probationers stand to benefit fromany rehabilitation efforts designed tohelp overcome wrong behaviour.
Av e r a g e c o s t o f s u p e r v i s i n gprobationers in the community perclient is very low compared withcustody.
Probationers are prevented fromcontamination with criminals and thestigma associated withimprisonment.
Probation orders are made in respectof any offender regardless of sex, age
or religion.
P r e s e n t l y, t h e D e p a r t m e n t i s
handling a total workload of:

Men
7,931

Boys Women Girls Total
2,097 2,016
400 12,444

With a workforce of 300 probation
officers, this translates into a ration of 4070 probationers per probation officer.
Comparatively therefore probation orders
are easier to manage, relatively cheaper interms of cost-effect and gain social
acceptance readily when the community isproperly sensitised.

b) Holding Capacity:
Daily average - Prisoners - 30,00040,000
Daily average - Probationers 12,500-15,000
Ratio:
One probation officer for 40-70
probationers
One prison officer for 3-7 prisonersc) Daily average costs:
About Kshs. 130/ per prisoner perday
About Kshs. 35/ per probationer
per dayd) Budget allocation per annum:
Prisons - 65%-68%
Probation - 4.5%-5.5%iv) Community Service Orders
The Community Service Order Act No.
10 of 1998 became law on December 31,
1998. The Minister proclaimed it
operational on July 23, 1999 and it wasformally inaugurated on December 29,
1999.
The basic features of the new act arethat:-

The following tables ably demonstrate
the above conclusion:a) Costs:
Staff
No. inPercentage
Strength Establishment
Ministry
22,451100%
Prisons
15,283
68.1%
Probation760
3.4%
Others
6,403
28.5%

-

-

It is a non-custodial sentence ofthe court.
It will normally attract the lessserious offences that lead tooffenders being imprisoned.
Offenders will submit to provide
unpaid labour in the community.
The supervising officer will be a
volunteer member of thecommunity.
The sentence will be judicial
driven.
The probation officer will be thelinkman between the courts, theoffenders, and the volunteer.

This programme is new and its impact

330

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
as an alternative to custody is potentiallypromising as the initial statistics indicate.
Today over 4,000 offenders have gone
through this programme and presently
there are 1,500 CSO on supervision andperforming unpaid work.
v) Aftercare Services
The aftercare work with offenders istechnically difficult. It involves trying toresettle offenders who have already beenin prison. These ex-prisoners are released
earlier by quasi-judicial recommendations
made by various discharge boards.
The aftercare categories are:
1. Borstal inmates discharged forone or two years supervision.
2. Psychiatric criminal offenders
released but subject tosupervision.
3. Long term prisoners released but
subject to supervision.
These three categories account for
600-1,000 daily average per annum.
Probation Service therefore
constitutes a key role in non-custody
management. The data available
shows that the workload stands at:
1. Probation orders on supervision
12,444
2. Community service orders on
supervision
1,500
3. Aftercare supervises
800
Total on supervision (average)
14,744
Ratio of officer per supervisee isgreater than50
The capacity to hold more supervisees
is already stretched to the limits and any
more added workload would entail injectionof more personnel and more resources
especially reliable transport and officeaccommodation.
V. SUGGESTED WAY FORWARD
The administrative structure for aneffective and efficient administration ofjustice already exists. The process is welllaid out and has been rehearsed often
enough to provide confidence in the public
and trusted working arrangement. It is
however the case that the justice that is
supposed to reassure the victim and thevillain ends up being suspect and cause forpublic dissatisfaction. This has led tounwarranted over use of prisons and theconsequent overcrowding.
The following suggestions could remedy
the situation if applied with utmost goodfaith by all stakeholders: a) There is need for more use of noncustodial combination orders so as toreverse the monopoly currently
enjoyed by custody orders.
b) There is need to devise a proportional
and pre-determined fines tariff withconsideration for ability to pay.
c) There is need to separate the run on
the mill petty persistent offenders
who engage most of the resources.
This will redirect efforts to combating
serious crime.
d) There is need to use more diversion
strategies for the untried suspects
and other low rated offences.
Attention and resources to be given
to combating crimes such as pollutionof environment, drugs offences,frauds, white-collar crimes and otherfelonies.
e) There is need to use more community
strategies in crime prevention andtreatment of offenders. Probation
orders, community service orders,combination orders, fines would be

331

RESOURCE MATERIAL SERIES No. 57
effectively utilised in this direction.
f) The courts to be sensitised to use
more pre-trial and pre-sentence social
reports as provided by probation
officers and others. The reports serve
to inform the courts on any given
offender appearing before themagistrate.
g) There is need for accelerate use ofearly release programmes and hence
cut back on the overall length ofsentence served in prison.
Non-custodial options have elsewherebeen demonstrated to work given the rightapproach by stakeholders. There is need
therefore to have the priorities right in thearea of criminal justice administration.
Sources:
1. Prevention of Crime and Treatment of
Offenders Seventh United Nations
Congress in Milan, Italy 26 August to
6 September, 1985.
2. Society Against Crime - Penal Theory
now edited by Howard Jones - Penguin
Books.
3. A Non-Treatment Paradigm for
Probation Officers - AE Bottom andWilliams McWilliams.
4. Ministerial Rationalisation and Staff
Rightsizing (OVPMOHAH & S)
October 1999.
5. Probation of Offenders Act, Chapter 64,
Laws of Kenya.
6. Community Service Orders Act, No. 10
1998.
7. Prisons Act, Chapter 90, Laws of
Kenya.
8. U g a n d a P r i s o n s S e r v i c e P o l i c yDocument - 2000 and Beyond.
9. Probation and Aftercare Service
Annual Reports.
10. Others - MTEF - Medium Term
Expenditure Framework (2000-2002),
Probation Department Reports.

332

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

CURRENT ISSUES IN CORRECTIONAL TREATMENT AND
EFFECTIVE COUNTERMEASURES
Zulkifli Bin Omar*
I. INTRODUCTION
It is the general consensus that thefundamental objective of corrections isrehabilitation, whether such institutions
are prisons, juvenile centers and othertypes of correctional institutions. Like
many other countries, Malaysia has beenstrongly influenced by the so-called
treatment and rehabilitation concepts, andstrongly believe in the possibility of being
able to treat and rehabilitate offenders.
The treatment process within the prisons
is clearly directed towards the preparation
for an eventual return to the community
as law abiding and socially productive
citizens. Their treatment should spell out
principles of legality and humanity, andthis conforms in almost every aspect to theUnited Nations Standard Minimum Rules(Treatment of Offenders) 1954 and thePrison Rules.
A reasonably high economic growthsustained by our country for the last
several years has furnished and coloured
the prisons population. Drastic social andeconomic changes has created a great
impact on the annual admission ofcorrectional institutions. The steady flowof foreign workers besides providing andfulfilling our manpower needs for thecountry’s growth and also contributed
significantly and has been a continued
upward pressure in the prison population.
This issue of over crowding has always
been the priority agenda in our prison
reformation. The sudden influx of HIV/AIDS infected prisoners have pressured the
management to accommodate some*

Senior Superintendent of Prison, Alor Setar Prison,
Malaysian Prison Department, Malaysiachanges in policies of prisoner daily
management.
Some major contemporary issues
resulting from these social, economic andenvironmental changes facing correctional
administrators include the changing trend
in prison population, overcrowding incorrectional facilities, improvement ofprison conditions, increase of drug-related
offenders, shortage of effective treatment
programmes and the small issues that caneasily be resolved by prison management.
II. RELATIONSHIPS BETWEENTHE CRIMINAL JUSTICEAGENCIES IN MALAYSIA
The administration of criminal justice in
Malaysia is enforced and administrated bythree different agencies, that is the Police(Investigation & Prosecution), theJudiciary (Criminal Justice Process) and
the Prisons (Correctional Center for
Offenders). These agencies are separated
in the sense of administration andjurisdiction, but they are related in theirfunctions. This relationship can be seen
whenever there are reported crimes; it
becomes the responsibility of the police.
When the police make an arrest, a decision
is made on whether or not to seek formal
charges against the arrest suspects. The
police may release a suspect withoutcharges if they consider their evidence
insufficient or admissible; or if the suspect
has established an alibi; if the suspectagreed to be an informant; if the victim or
key witnesses show reluctance to follow
through on prosecution; or for otherreasons. When the police do seek formal
charges, the prosecutor must decide333

RESOURCE MATERIAL SERIES No. 57
whether to issue an information or seek abill of inducement from a grand jury. Whena case is prosecuted, the guilt or innocenceof the defendant must be determined. A
preliminary hearing of some sorts is
usually held first, where the probable cause
supporting the charges is reviewed anddefense motions concerning theadmissibility of the prosecution evidence
are considered.
When a person is sentenced, additional
decisions determine whether that sentence
will be served in prison or a rehabilitation
center. Decisions are also made about whatkinds of treatments the convicted person
should undergo. In the case of a person
sentenced to prison important initialdecision concerns the kind of institution towhich he will be sent. The principal
distinction is among minimum, medium
and maximum-security prisons. Generally,
the higher degree of security, the lesscomfortable the accommodation and themore limited the freedom enjoyed byinmates. The prison administration within
the framework of its penal legislation
classifies the prisoners and determines thetreatment programm for them. Therefore,
we can summarize that the enforcement
and the administration of the criminal
justice system in essence are to arrest,
sentence and rehabilitate the sameoffender. The objectives of the Criminal
Justice System in Malaysia in relation tolaw-breakers are that it removes dangerous
persons from the community, it prevents
others from criminal behavior, and it offers
the society an opportunity to attempt totransform law-breakers into law-abiding
citizens. As said earlier, these objectives
are achieved by a close working
relationship between the Police, theJudiciary, and the Prisons.

334

III. THE ROTATION OF THE
CRIMINAL JUSTICE PROCESS
PublicPrisonPoliceJudiciary
A. The Malaysian Judiciary
The Malaysian Constitution provides forthe exercise of power by the legislature, theexecutive and the judiciary. The judiciary
plays an important role in this balance ofpower. It has the power to hear anddetermine civil and criminal matters, andto pronounce on the Legislative andExecutive Act. To enable it to perform its
judicial functions, impartially, the judiciaryis relatively independent.
The judicial power of the country isvested in the Federal Court, the High
Courts and the Subordinate Courts. The
Head of Judiciary is the Lord President of
the Federal Court. He has directsupervision over all courts, which areheaded by an administrative head, that is
the Chief Registrar.
B. The Malaysian Police ForceThe Malaysian Police Force headed by
the Inspector General of Police is charged
with the responsibility of not only
preventing crimes but also performing avariety of general duties for the protectionof the general welfare of the people. They
are also responsible for investigating
crimes, detecting and identifying offenders
and prosecuting criminals in courts.
Besides all those, the police also have toperform other duties including patrolling
coastal water and rivers, jungle operation,
tracking down undesirable elements,
investigating the smuggling of drugs, arms
and other protected items through the

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
borders ensuring the safety of passengers
traveling in the nations railway and airline
system.

throughout the country and to ensure
consistency of administration in all the
penal establishments in all the states.

C. The Malaysian Prison Service on
the Treatment and Rehabilitationof Offenders and Juvenile
Delinquentsa. Background
In Malaysia before the Second World
War, the penal establishments in various
Malay States, Straits Settlement (Penang,
Singapore and Malacca) and Sabah andSarawak were directly under the
responsibility of the respective states andsettlements. Each of which had its own
prison regulations. The policy in all prisons
was basically punitive in nature, i.e.,making the life of the prisoner hard andunpleasant. It was hoped that suchconditions would operate as a deterrent tocrime.
In 1949, a centralizedadministration was set up and a
Commissioner of Prisons appointed toexercise control over the administration of
all prisons. From the year 1950 onwards,
in keeping with modern trends of penal
development the deterrent theory ofpunishments was replaced by thereformative theory and this had an
important impact on the department. In
1953, there was a repeal of the seven
separate and different prison enactment’s
which were replaced by prison ordinanceand prison rules, which were based on themodern concept of human treatment ofprisoners and juvenile delinquents. The
replacement by the new legislation does notcover the states of Sabah and Sarawak.
These two states still practiced their own
ordinance and rules until the year 1995,
when the Prison Ordinance 1952 was
replaced with the new legislation called thePrison Act 1995. This new piece oflegislation is a landmark in thedevelopment of the penal system in the
country. For the first time, it became
possible to apply uniform penal methods

The Prison Department is responsible
for the administration and management of
39 penal establishments in Malaysia
including the Prisons Rehabilitations’Centers, Drug Rehabilitation Centers andAdvanced Approved Schools for juvenile
delinquents. The Minister of Home Affairs
is the central and final authority for policy
making and administration relating to thetreatment of offenders in Malaysia.
INSTITUTION
Headquarters
Prisons
Rehabilitation Centers
Detention Centers
Advance Approved Schools
Prison Colleges
Total

TOTAL
3
25
3
1
5
2
39

The Director General of Prison is
responsible to the ministry for the
direction, supervision and overall control
of all penal establishments in Malaysia. At
the Prison Headquarters in Kajang,
Selangor, the Director General is assisted
by a Deputy Director General and various
head divisions at the regional level, eachpenal institution is headed by a Director
or Senior Superintendent of Prison
depending on the size and inmates
population of that particular prison. They
are responsible to the Director General of
Prison with regard to the administration,
security of institution as well as therehabilitation programmes of the inmates.
b. Roles and Functions of Malaysian
PrisonThe purpose and objectives of this paper
are to enlighten the role of Malaysian
Prison as a main correctional body in the
Criminal Justice System. Generally theobjective and functions of the Malaysian335

RESOURCE MATERIAL SERIES No. 57
Prison Department are:i) To protect the public by segregating
the offenders from the community asordered by the courts.
ii) To effectuate judicial decisions byholding prisoners in custody until
their actual times of release.
iii) To provide a secure, orderly andhumane treatment environment foroffenders in department custody, andiv) To rehabilitate offenders so that they
may regain their self-respect and selfidentity and thus eventually returnto their community as law-abiding
and socially productive citizens.
In order to ensure these objectives andfunctions being successfully achieved,
various steps have been taken by theinstitution. In other word, this is where
the Prison Department plays their role.
The main principles in treatment of theprisoners are as follows:i) Discipline and order shall bemaintained with fairness but
firmness, and with no more
restriction than is required for safe
custody and to ensure a well ordered
community life.
ii) In the control of prisoners, prison
officers should seek to influencethem, through their own example andleadership so as to enlist their willing
co-operation; andiii) At all times the treatment ofconvicted prisoners shall be such as
to encourage their self-respect and asense of personal responsibility; so as
to rebuild their morale, to inculcate
in them habits of good citizenship andhard work, to encourage them to leadgood and useful life on discharge andto fit them to do so.
In Malaysia, particular attention is paid336

to the treatment of prisoners with theobjective that persons deprived of liberty
should be treated humanely, and enjoy
basic rights and as far as possible,
conditions of living in accordance with the
dignity of a free man outside the prison
wall. To prove this, upon admission toprison, a great deal of trouble is taken overeach individual prisoner whereby each ofthem is documented and a dossier is opened
for him.
Information about him, like social
background, antecedents, physicalappearance, offense, sentence, etc. isrecorded in the dossier, admission registry
and other books. After being medicallyexamined, the Reception Board headed by
the Officer-in-Charge or his Deputy
interviews the inmates, ascertains theirinterests, classifies them and assigns theman appropriate form of treatment which isdeemed best suited to them.
c. Vocational Training
Rule 74, Prison Rules 1953 stated that,“Every prisoner shall be required to engage
in useful work, all of which so far aspracticable, shall be spent in associated or
their work outside the cells, and no prisoner
shall be employed on any work unless hehas been certified as fit for that type of workby the medical officer.”In the Correctional System of Malaysia,
prison industry forms an integrated partof the programm of rehabilitation of
offenders as well as an important
instrument for providing employment for
inmates. The objectives of this trade are:i) To provide the offender vocational
training with a level of training andskills appropriate to his aptitude andcapacity that would enable him tocompete for related and satisfying
employment after release.
ii) To give the offender confidence,

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
satisfaction and self-respect so that
he may adjust easily to normal
society after release.
iii) To cultivate good working habits
among offenders.
Carpentry, tailoring, metal work,
laundry, handicraft, rattan-work, printing,engine-repairs are some trades taught inprison. Besides practicing this trade, in
1981, Malaysian Prison Department moved
to a new concept of vocational training
called “Joint-Venture Scheme.” Under thisscheme, the Prison Department supplies aselected number of inmates andworkmanship premises (within the prison)and the private companies involved provide
m a c h i n e r y, r a w m a t e r i a l s , t r a d e
instructors, expertise and are also
responsible for the marketing and sale ofthe products.
The participating firms are also required
to pay for the rental of the prison
workshops, water and electricity bills,
insurance coverage for inmates and regularsalaries to inmates who participate in thescheme.
The objectives of this new approach are:i) Reduce government expenditure andincrease revenue.
ii) Provide inmates the opportunity to
be trained in the use of modern

machinery and acquire the technicalknow-how.
iii) Reduce technical training instructors
and administrative work.
iv) Non-involvement in marketing.
v) Increase the earning of inmates.
vi) Provide more vocational training
facilities for the increasing prison
population.
Industries pursued under the JointVenture Scheme are wood-cane, furniture,and knitting of sweaters for export,
electronic gadgets, carpet inlays andothers. Since its introduction, the Joint
Venture approached has proved to be a
success and inmates have benefitedtremendously from it. For this reason, thePrison Department is planning to expand
this scheme to all prisons.
IV. TRENDS IN PRISONPOPULATION
A. Prison Capacity
There should be a balance between thenumber of prisoners and the facilities toaccommodate them. Any imbalance will
create severe impacts on the total
rehabilitation programm. Currently wehave 34 penal institutions with a
comfortable capacity of 23,884 prisoners.
However the prisoner population as per 2
March 2000 was 25,029 (9.54%) that is
above the comfortable capacity.

Total Number of Prisoners as per 2 March 2000
Institutions

Total No. of Prisoners

Comfortable Capacity

Prison22,176

20,755

Rehabilitation Center

1,884

2,030

Detention Center

29

369

Advance Approved School

940

730

Total

25,02923,884337

RESOURCE MATERIAL SERIES No. 57
Excess number of prisoners certainly
creates some problems for theadministrator on the mundane tasks oftransportation, feeding and bedding. And
more importantly it undermines internalsocial control, creates high potential for
conflict and can negatively influence therelationships between staff and inmates.
The central problem in prison
management here is its lack of control overthe increasing number of inmates. Its
workload is entirely at the mercy ofmagistrates and judges who have no
structural involvement in the managementof the prison system and no responsibility
for allocating resources thereto.
B. Prisoners Awaiting-Trial
Remand Prisoners as per 2
March 2000
TypeHigh Court
Session Court
Lower Court
Foreigners
Others
Total

Total of
Remand Prisoners
392
873
5,161
924
4
7,353

Another factor adding to the prison
capacity is the high incidence of prisoners
awaiting-trial or remand prisoners inprison. As the above chart clearly shows,over 29.38% of all prisoners held on March
2, 2000 were awaiting trial. This is largely
due to a considerable proportion of mainly‘lower socio-economy’ class of accused being
unpresented in court or unable to meet bailor bail requirements. We strongly feel thatthe high percentage can be reduced in thefollowing ways.
a) The introduction of an easier andmore accessible legal aid system.

338

Apart from representing an accusedin court, this would entail a system
whereby lawyers are ‘on call’ so thatthey may consult with a defendantas soon as possible after arrest. It istimely to introduce a ‘duty solicitor’
whose service is paid by Judiciary
Department under their legal aid
scheme.
b) Shortening the period between
admission and judgement orsentence.
c) Introducing a holistic approach insentencing. The prison systemshould be seen as, and should operate
as an integral part of an
administration of justice. The courts
should be confronted with the realitythat their decisions have resources
consequences and impact on theprison regime. The court should be
informed that resources do not permit
more than a pre-determined numberof persons in prison - meaning thateither fewer offenders be incarcerated
or some be released. Allocation of
scarce resources (i.e. places in prison)
would be only for the most deservingcases.
C. Foreign Prisoners
Foreign Prisoners as per 2
March 2000
Institution

Total of
Remand Prisoners

PrisonRehabilitation Center
Detention Center
Advanced Approved Schools
Total

5,036
15
2
15
5,068

Besides the increasing number ofprisoners awaiting trial, the influx offoreign prisoners has also changed theprison population trend. Currently almost

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
20.29% (5,068 as per March 2, 2000) of theprisoners in all our penal institutions areforeigners. Although they do not create aphysical threat towards discipline or
security, however their sudden and everincreasing number will generate negative
responses in terms of prison regime. It hascaused ineffective communication between
staff and prisoners (language barrier) andalso a rise in various contagious diseases(i.e. conjunctivitis, scabies, and diarrhea).
Furthermore, exceeding capacity will
ultimately cause a serious degraded ability
to manage education and recreation spaces
which are turned into sleeping quarters,
leading to a lack of services and activities
which quickly translates into boredom,
restlessness and tension among prisoners
and between the prisoners and staff.
Prisoners gain more control as morale
among the staff is depreciated and there
begins ‘a vicious circle of diminishedcontrol’. This causes a substantial numberof prisoners to leave the prison more
embittered and hostile to society than when
they arrived. They leave prison therefore
in a state of mind where they are more
likely to reoffend.
The number of inmates held in a prison
should be determined NOT by the numberof beds that can be crammed in but by thefacilities available to contain people
decently and provide them with out of cell
activity.
D. Overcrowding
Prison overcrowding is a pressing
problem of the Criminal Justice
Administration. The Prison Departmentof Malaysia is perplexed to a certain degreeby the explosion of the population.
a. Causes of Overcrowdingi) The increasing number of social
problems faced by the country due tochanges in social economical andpolitical conditions. The abrupt
migration process and the flow offoreign nationals to meet the demandof manpower.
ii) E x c e s s i v e l y d e p e n d e n t o n
imprisonment. The criminal justicesystem imposes a great deal ofimportance to imprisonment as amajor means of deterring crime anddefending society. It is also seen as a
primary method of punishment.
Therefore more offenders are
imprisoned than is necessary due tothe lack of alternatives.
iii) An increase of drug-related offenses
and long-termers. The number ofdrugs-related offenses has doubled in
the last ten years. This category ofprisoner serves a longer term ofsentence. Furthermore, serious drugrelated cases (39B - Dangerous DrugAct 1985) spend an average of 2-3
years in Remand Centers before
actually being sentenced or acquitted.
iv) Prison facilities unable to keep pacewith the prison population influx.
b. Implication of Overcrowding in
Prisoni) Intolerable strain on staff, budgets
and the running of programmes. The
alarming ratio between staff andprisoners results in a high degree ofstress among officers. They areunable to carry out their duties
effectively and efficiently whichindirectly effects their morale. The
lack of space facilities, resources andtechnical equipment have hindered
the prison department to provide
prisoners with a full range oftraining, work and educational
opportunities when they have too
many prisoners to cater for properly.
ii) Prison overcrowding impedes ourdepartment to effectively implement
international standards in particular.
The United Nations Standard

339

RESOURCE MATERIAL SERIES No. 57
Minimum Rules (Treatment of
Offenders). The poor living
conditions thereby causes tension
and stress for both inmates andofficers.
iii) Due to this acute problem we areunable to categorize prisoners
specifically to undergo a designed
programm. Prisoners from various
categories mix and this createsvarious stressful situations.
c. Present Strategy to Overcome
Overcrowding
The trickling down effects of thisovercrowding problem is perceived by ourdepartment very seriously. Short-term
solutions are as below:i) Mobilizing Prisoners
Prisoners from an over populated
institution are moved to anotherwhich are able to accommodate them.
Multiple variables are considered
prior to allocation of these prisoners.
The process of mobilizing prisoners
causes severe strains on escorting /security personnel and financial
control. Prisoners being placed
hundreds of miles away from theirhomes, with adverse effects upon
their ability to maintain contact with
their families and plan for their
future. Critics claim that thisstrategy hinders society for playing
a vital role in molding the deviant
behavior of the prisoners andpreparing them to become an integral
part of society. This strategy enables
every inmate to have a comfortableliving space and to ensure therehabilitation programm is run
effectively.
ii) Cell Expansion Programmes
Several out-dated buildings wereidentified and reconstructed toaccommodate the increase of340

prisoners. Besides living quarters,
expansion of other facilities was alsodone simultaneously.
iii) Building New Blocks in the Existing
PrisonNew additional accommodation has
been built in several prisons such as
in Penor Prison, Pengkalan Chepa
Prison and Kemunting Camp.
Building a new block with facilities
will help to overcome overcrowded
prisons.
iv) Co-operation with Other Agencies
Our department holds an average of
4,500 to 6,000 of foreign prisoners(18-25% of total population) at any
one time. Besides space andlanguage obstacles, a huge mount offinancial resources is spent annuallyfor their upkeep, about RM30.00 aday. Periodic meetings are held with
the immigration and members ofconsulate offices to expedite
repatriation and deportation.
d. Long-Term Strategy to Overcome
Overcrowdingi) Building New Prison
The most direct solution to prison
overcrowding is constructing moreprison facilities. For example: The
Pudu Prison which was built in theso-called suburbs in 1895 to cater for
600 prisoners, currently situatednear the K.L’s golden triangle.
Therefore it has been relocated at
Sungai Buluh with the capacity of
2,500 prisoners. In the seventh
Malaysia Plan our department has
proposed several new prisons to bebuilt and operationalized. Afterseveral rounds of negotiations anagreement was reached between thecentral government and thedepartment that some colonial andpre-war prisons shall be replaced

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
with high-tech and modern facilities
to meet the projected demand into thenext century.
Extremely high costs in building
these institutions has forced allconcerned parties to seek
alternatives. In principle theEconomies Planning Unit has agreed
and awarded several projects to
private companies. The involvementof the private sector has sparked new
ideas in design and construction withcost-efficiency in mind.

A proposal of a new prison has been
made to build an additional prison inseveral places such as in Pokok Sena,Central Prison of Kuching, Temerloh,
Perlis, Raub, Gombak, Kuala
Kangsar, Seberang Prai, Jeli and
Bintulu.
ii) Alternatives to Imprisonment
Courts usually impose custodial
sentences (i.e. imprisonment) when
it is thought to meet one or more of
the perceived aims of sentencing viz.,
retribution, deterrence, protection of
the public and rehabilitation. One
major factor which influences a court
to impose a prison sentence is the lackof suitable alternatives such as noncustodial sentences including fines,
whipping, binding certain offenders
over, discharges (absolute andconditional), probation, police
supervision and some fairly little
utilized provisions for compensation.
Research has shown that first-timeoffenders that are imprisoned foroffenses are more likely to laterembrace criminality than offenders
given alternative sanctions.
Therefore the Prison Department
with the assistance and blessing of

the Ministry of Home Affairs has
made recommendations to the
Judiciary for new avenues insentencing i.e. introduction of aparole system and community service
orders. It is timely that theCompulsory Attendance Act 1954 berevised and utilized extensively.
V. THE PROVISION OF FOOD AND
HEALTH SERVICES IN PRISONS
A number of issues relating to prison
health services have been discussed in theprevious conference and it is not proposed
the same discussion be repeated here.
Hence, the emphasis on this occasion will
be particularly on the following: 1. Food Services
2. Health Services
a. Provision of Food in Prisonsi) There is great dissatisfaction with thetimes for serving prison meals,
particularly when the evening mealis served very early to precede thenightly lock-up. The DirectorGeneral of Prisons, Malaysia hasrecently issued a Standing Order toall prison institutions to serve
evening meals to all categories ofprisoners after 6 p.m.
ii) To ensure that all prisoners receive
reasonable levels of nourishment
while they are in custody.
Prisons Rule 61 states, “The food of a
prisoner shall be in accordance withthe diet scales set out in the First
Schedule hereto, or such other dietscales as may from time to time beapproved by the Minister of Home
Affairs on the recommendation of the
Minister of Health.”
Prisons Rule 62 states, “Debtors,

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RESOURCE MATERIAL SERIES No. 57
prisoners awaiting trial, prisoners on
remand, and all others committed forsafe custody who do not elect toprovide their own food shall be
supplied with the same diet scales as
prisoners undergoing sentence.”
Prisons Rule 64 states, “No prisoner
shall receive or have in his possession
any food other than that authorisedby the diet scales, except; (a) with theauthority of the Officer-in-Charge in
special circumstances, or (b) with theauthority of the medical officer if avariation of diet is desirable on
medical grounds for an individual
prisoner.”
Prisons Rule 66 states, “Care shall betaken that all provisions supplied toprisoners be of proper quality andweight, and in all cases food shall begiven to prisoners before the day’s
work begins. Scales and standard
weights and measures shall be
provided for weighing the foodsupplied to them.”iii) To ensure that the health standardsof prisoners are maintained.
Prisons Rule 7 states, “In every
prison, an infirmary or proper place
for the reception of sick prisoners
shall be provided.”Prisons Rule 18 states, (1) “Every
prisoner shall as soon as possible
after this admission be separately
examined by the medical officer, whoshall enter on the prisoner’s record
particulars of the state of health ofthe prisoner; whether or not he has
been vaccinated, or had smallpox;
whether he has been on opium.”
Consumer, and to what degree; andany other information which it may

342

seem desirable to record; (2) “No
prisoner shall be put to labour until
the medical officer has certified that
he is fit for such labour, and the
medical officer shall certify whethera prisoner may be employed to do
hard labour or light labour”; (3)“Every prisoner shall be examined by
the medical officer before being
discharged or removed to anotherprison and no prisoner shall be
removed to another prison unless the
medical officer certifies that theprisoner is fit for removal.”; (4) “A
prisoner due for discharge who issuffering from any acute or
dangerous illness shall be transferred
to a government hospital.”
Prisons Rule 19 states, “A prisoner
may be vaccinated or re-vaccinatedat the direction of the medical officer.”
Prisons Rule 20 states, “If a prisoner
shall be found to be suffering fromany infectious or contagious disease,or to be in a verminous condition,
steps shall at once be taken to treat
the condition and to prevent it fromspreading to other prisoners.”
Prisons Rule 58 states, “Every
prisoner shall be supplied withbedding adequate for warmth andhealth in accordance with a scale
approved by the Director-General.
Additional bedding may be suppliedin special circumstances on therecommendation of the medical
officer.”
Prisons Rule 59 states, “The clothesof a prisoner shall be changed andwashed weekly, and bedclothes shallbe aired and washed as often as theofficer-in-charge may direct. The
prison clothing discarded by aprisoner on discharge shall be

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
thoroughly washed, dried anddisinfected before being returned tostore or re-issued.”
Prisons Rule 69 states,“Arrangements shall be made so far
as practicable for every prisoner,unless excused by the medical officer
on medical grounds, to take exercise
and physical recreation daily.”
Prisons Rule 75 states, “A prisoner
certified not to be fit for hard labourby the medical officer may be
employed in one or more of thefollowing forms of light labour: sewing, gardening, laundry work,cleaning and white-washing theprison, conservancy, and any such
similar services as the officer-incharge may from time to time direct.”
Prisons Rule 184 states, “A prisoner
on remand or awaiting trial shall, if
necessary for the purposes of his
defence, be allowed to see a registered
medical practitioner appointed byhimself or by his relatives or friends
or legal adviser on any week day at areasonable hour, in the sight, but notin the hearing, of the officer-in-charge
or an officer detailed by him.”
Prisons Rule 185 states, “When an
unconvicted prisoner wears his own
clothing in prison the medical officer,
may, for the purpose of preventing the
introduction or spread of infectious
disease, order that the clothing be
disinfected, and during the process of
disinfection the prisoner shall beallowed to wear prison clothing.”b. Dietary Restrictions
The United Nations’ Standard Minimum
Rules for the Treatment of Prisoners does
not prohibit the use of dietary punishments
but requires medical supervision. Manynations have prohibited the use of dietary
restrictions as a form of punishment andcontrol. However, the Prisons Departmentof Malaysia still mobilises “Half Rations” /“Bread and Water” as management
strategy for recalcitrant or troublesome
prisoners and prisoners who committed
serious offenses, such as assaulting staff
or repeated attempts to escape.
“Punishment by close confinement or
reduction diet shall never be inflicted
unless the medical officer has examined theprisoner and certified in writing that he is
fit to sustain it.” Rule 32 (1) U.N.S.M.R.
Prisons Rule 122 states, “An Officer-inCharge, if a Chief Officer or Principal
Officer Grade 1, may punish any prisoner,
found after due enquiry to be guilty of aminor offence, by ordering him to undergo‘confinement in a punishment cell for aperiod not exceeding three days on thepunishment diet prescribed in the First
Schedule hereto’.”Prisons Rule 124 states, “An officer-incharge, if of or above the rank ofsuperintendent, may punish a prisoner
found, after due enquiry, to be guilty of aminor offence, by ordering him to undergo‘confinement in a punishment cell for ateam not exceeding seven days on thepunishment diet prescribed in the First
Schedule hereto’.”Prisons Rule 125 states, “An officer-incharge, if of or above the rank ofsuperintendent may punish a prisoner
found, after due enquiry, to be guilty of an
aggravated prison offence by ordering him
to undergo (a) corporal punishment notexceeding twelve strokes with a rattan, (b)confinement in a punishment cell for a term
not exceeding seven days on thepunishment diet prescribed in the First
Schedule hereto.”

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RESOURCE MATERIAL SERIES No. 57
Prisons Rule 126 (3) states, “The Visiting
Justice shall, upon receipt of the report
where a prisoner is accused of an
aggravated prison offence, attend at theprison without undue delay and investigate
the charge, and may punish a prisoner
whom after due enquiry upon oath he orthey may find guilty of such offence with(a) confinement in a punishment cell for aterm not exceeding thirty days upon thepunishment diet prescribed in the First
Schedule hereto; (b) corporal punishment
not exceeding 24 strokes with a rattan.”
Prisons Rule 127 states, “Every prisoner
sentenced to dietary or corporalpunishment shall be sent to the medical
officer for examination, and a certificatethat its infliction is not likely to produce
any serious or permanent injury shall beobtained by the officer-in-charge before itis carried out.”
Prisons Rule 128 states, “A prisoner
undergoing punishment shall be suppliedwith such clothing and bedding as may becertified as essential by the medical officer.”
Prisons Rule 129 states, “Whenever a
prisoner is sentenced to undergo close
confinement in a punishment cell for aperiod exceeding three days on apunishment diet, he shall be given full dieton every fourth day.”Prisons Rule 130 states, “Confinementin the punishment cells shall not exceed
an aggregate of ninety days in a year for
any one prisoner, and the execution of any
two consecutive sentences shall beseparated by a period not shorter than thelonger of such sentence.”
Prisons Rule 131 states, “A prisoner
sentenced to confinement in thepunishment cells shall see no one otherthan prison officers in the execution of theirduty, a Minister of Religion and the Medical

344

Officer, and shall have only such out-door
exercise as the latter certifies is absolutely
necessary for health. Every prisoner
confined in a punishment cell or subjected
to restricted diet shall be visited at least
once a day by the Officer-in-Charge and the
Medical Officer, and if he is confined in apunishment cell he shall be visited by theappointed prison officer at intervals of not
more than three hours during the day andnight.”
c. Provision of Food and Wateri) “Every prisoner shall be provided by
the administration at the usual
hours with food of nutritional value
adequate for health and strength, ofwholesome quality and well
prepared and served,” Rule 20 (1)U.N.S.M.R.
ii) “Drinking water shall be available
to every prisoner whenever he needs
it,” Rule 20 (2) U.N.S.M.R.
iii) Food services to meet the needs ofminority groups.
(a) Members of particular religious
groups in prison may have very
specific dietary requirements andprohibitions which they regard as
essential to their well being.
(b) Other minorities with particulardietary needs:- foreigners- women who are pregnant- prisoners who are unwell(c) Special needs or privileges forunconvicted or remand prisoners,
even though in some nations they
comprise the majority of all
prisoners. Historically, in somesystems, remands have been
allowed to have their meals sentin rather than being required to
eat the prison food.
(d) Provision of professional advice
and supervision by dietitians toensure that the nutritional value
and scheduled variety of prison

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
food is maintained.
(e) Privatization of all food services
to a prison or even prison system.
The cost-effectiveness of thisventure of entering into contracts
with private businessorganizations for the supply of all
food services.

Guidelines given by the Ministry of
Health regarding precautions andmanaging the spread of HIV will befollowed strictly. Prison staff that will be
involved in controlling HIV prisoners haveto attend seminars, courses, lectures which
gives them knowledge about HIV andAIDS.

VI. PROVISION OF HEALTHSERVICES

The Malaysian Prison Department has
to maintain the health of all prisoners andalso to prevent HIV from spreading within
the prison wall, so in order to make sure
this is done, screening by the team from
hospitals and prison counselor have to bedone with new prisoners. From theseresults, all the HIV positive inmates will
be placed in one building. Even though
they stay in HIV blocks they are still
involved in every activity that otherprisoners have, such as playing games,
working in workshops together and being
involved in other rehabilitation
programmes. To make sure that these HIV
prisoners get proper treatment, they will
be placed in certain prisons that haveenough medical facilities and every year
more allocations will be given to that prison
to buy more medicine and give better
treatment.

The objectives of health services are toprovide proper medical services toprisoners to provide first aid services to theneedy and to handle emergency cases thatneed immediate medical attention.
Doctors, medical assistants and nurses
are the employees directly employed ortransferred from other government
departments of the Malaysian prison
system. At present, the prison medical unit
consists of (1) medical officer, (19) medical
assistants and (1) staff nurse. They are all
full time employees of the Prisoner
Department operating 27 prison clinics
throughout the country. There are (17)institutions with sick-bags that can eachaccommodate (15) beds at any one time.
Prison clinics and sick-bags cater only forminor cases. All the serious and major
cases are referred immediately to theDistrict Hospital outside.
The challenge received by the healthservice in prison began when four prisoners
were identified as HIV carriers in 1989
through blood screening done by the
Ministry of Health group. The number of
HIV positive inmates kept on increasing
every year. Steps should be taken to
overcome this problem if not this situation
will effect the credibility of the prison
health service. To prevent HIV cases fromspreading in prisons the management takefurther steps and a have close rapport with
the Ministry of Health.

The Prison Department also has
counselors dealing with HIV/AIDS, as weknow that since 1991 it has spread widelyaround the world including Malaysia. At
present, we have quite a number ofprisoners involved in drugs. Among them,those who have been affected by HIV/AIDS
could have practiced risky behavior andlifestyles such as individuals with multiple
sexual partners, drug abusers who shareneedles, prostitution etc.
A. Objectives of HIV/AIDS
Counseling
HIV/AIDS counseling is done to achievevarious objectives. Among them are: -345

RESOURCE MATERIAL SERIES No. 57
a. Prevention of infection throughpromotion of healthy life styles,
behavior, moral and spiritual values.
b. Prevention of transmission throughmodification of risky lifestyles andbehaviors.
c. Provision of psychosocial support tothose infected and / or affected by
HIV/AIDS to achieve optimum levelsof functioning and a satisfactory
quality of life.
d. To complement health education andcorrect misconceptios or myths about
HIV/AIDS.
For the prisoner that cannot accept that
he is HIV positive the prison counselor willplay their role until this prisoner can accept
the reality. To maintain the health of the
HIV prisoners the prison officer will makesure the medicine given to them will follow
the schedule and the follow up at hospitalwill be arranged depending on the due datein the treatment card.
When HIV prisoners are released, lettersto the nearest hospital will be sent and a
copy to the prisoners to ensure that further
treatment will be had by him. Prison
counselors also take this opportunity togive advice to them to follow the hospital
precautions to prevent the spread of HIV
outside.
The question on the provision of healthservices by a private organization needs
serious consideration at this moment due
to the difficulties in employing medical
professionals and the high cost
maintenance.
VII. INCREASE OF DRUG
RELATED OFFENDERS
The increase of drug-related offenders
was also an important issue that shall beconsidered by the prison management. The
increase of these prisoners will make us

346

think how to treat them within the prison
walls. It is not that easy to make themchange their lifestyle to be a normal person.
In the year 1981, the Malaysian Prison
Department first introduced arehabilitation programm where it started
with an integrated approach, which also
involves other rehabilitation agencies inand outside of prison. Counselors weretrained in skills and techniques ofcounseling. Now we have 150 posts for thecounseling officer and we have filled 125of them and when we compare the ratiowith the prisoners the difference is still
very high. The ratio that has beensuggested by the Public Service
Department is 1:30 but the ratio in the
Malaysia Prison Department is 1:90.
The duty of the counseling officer is notmeant to be for drug-related prisoners only
but they have to cover other types ofprisoners also. In short term strategy, ourdepartment tries to fill in the post that wehave and in long term strategy, the post
will be restructured and should have atleast 400 posts comprised of the ranks ofsuperintendent, deputy superintendentand assistant superintendent.
The integrated approach programm will
include
1. Vocational Training
2. Religious Education / Morale
3. Academic
4. Marching
5. Spots / Recreation
6. Activities in Libraries, Music, TV andetc.
On February 1992, the prison based
Therapeutic Community (TC) programm
was introduced where basic training intherapeutic community was given to thecounselors as well as the inmates.

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
A. Prison-Based TC Programmes
On 2 September 1992, one pilot projectof the TC rehabilitation programm was
implemented in the Drug Rehabilitation
Center, Kajang Prison. From that
programm we achieve success and this TC
programm has been introduced andexpanded to other prisons such as:
1. 1 December 1994 - H e n r y G u r n e ySchool, Telok Mas,
Melaka2. 27 July 1996
- Drug Rehabilitation
Institution, Jelebu,
Negeri, Sembilan
3. 1 August 1999
- Womens Prison,
Kajang4. 1 October 1999
- Marang Prison,
Terengganu
5. 7 July 1999
- Henry Gurney
School Kota
Kinabalu
6. 1 October 1999
- Seremban Prison,
Negeri Sembilan
7. 1 November 1999 - S i b u P r i s o n ,Sarawak
The expansion of this TC programm isstill going on and will be implemented toother prisons.
a. Objective of the TC Programmesi) To provide long term residential
treatment programmes for drug-freeand productive lifestyles and become
good Malaysian citizens.
ii) To utilize concepts / peer support andreview progress in conjunction withprofessionally structured therapy
programmes.
iii) To say no to drugs and abstain fromdrug abuse.
b. Strength of the TC Programmes
The Therapeutic Community (TC)
Program has its owned modality aim unlike
other drug rehabilitation programmess.
This concentrates on:i) M o r e t h a n 9 0 % o n p h y s i c a lrehabilitationii) Love and caring attitudesiii) Family oriented
B. Religious Activities
Religion is a main subject in a humanlife no matter what race he/she comes frombecause every religion carries goodteaching and good faith. It provides a guideto be an honest citizen, decent and honest
living. Malaysia is a multi-racial society
and prisoners of different races and religion
are committed to custody. Freedom of
religious worship is allowed for all
prisoners. Religious instructors andteachers from various faiths provide
religious guidance in all penal institutions.
By doing so, it is hoped that each prisoner
realizes his mistakes and sins of the pastand try to change into a good well-matured
human being. Religion alone can be astrong medicine for rehabilitating aprisoner, which carries a very strong
impact upon their release.
Besides visits from family members,
visits by religious groups and volunteer
agencies will help prisoners connect withsome religious beliefs and have a better
understanding of the outside world andperhaps their future. These visits will, in
one way or another, encourage prisoners
to have a better out-look on life. Thisreligious influence may entice this categoryof prisoners to spend some of their timepraying or reading religious scripts.
The rehabilitation programm that has
been introduced and exposed to theoffenders in prison as an institutional
treatment is hoping to be a starting point
for them to change their future
undertakings. Without public participation
the process of changes wills stop half way.
What we hope is that, the prisoners or
offenders that are ready to change or repent
will play their role after release. After

347

RESOURCE MATERIAL SERIES No. 57
release, these offenders will go back tosociety and become part of society. With
the changes made by these ex-offenders
this will at least prevent them from being
involved in drugs outside and follow
religious activities.
C. Reformation Programmes Message from Prison
One of the new rehabilitation programs
that is useful for prisoners involved in drugor drug-related offences is the reformation
programmes - message from prison. This
program is a teamwork program between
the Prison Department of Malaysia and the
Education Department of Malaysia. This
program was launched on 1 April 1999 as
an alternative to fight against social illness
or problems among teenagers, mainly
students. With this cooperation, the Prison
Department has taken steps in choosing
inmates, trained them, made them
involved, exposed them to the communityand let them share their experience andbackground up until their involvement incriminal offences and the results of being
sentenced to prison. Their backgrounds,
the hardship faced by inmates andrepenting following the prison
rehabilitation program will be shared
among their inmates, students and also
parents.
From this program the inmate will feelthat they are also important and can give
their support to the government and realizethat the community can also appreciatethem. The program will also encouragethem to change their life and have a senseof personal responsibility. Also thisprogram will rebuild their morale andformulate habits of good citizenship andhard work, to lead a good and useful life.

348

VIII. INTERNATIONAL TRANSFEROF PRISONERSInternational cooperation is generally
defined as mutual assistance between
countries; where all parties gain mutual
benefits. Beneficial in terms of theexchange of information, ideas, materials
and resources. It is undeniable that withthe vast technological innovations in theworld today people are more mobile andtravel time is short. However such speed
and freedom cannot be applied to prisoners
serving in nations other then their
homeland as treaties for the transfer ofprisoners from one country to another have
yet to be established in most nations.
International transfer treaties are
beneficial if established as the positively
contribute to the rehabilitation process ofthe prisoner in terms of being in a suitableenvironment where family relations andfriends may provide moral support.
Familiar atmospheres additionallyassist in elevating mental stressexperienced by prisoners serving terms ina country foreign to them.
As of 2 March 2000 there were a total of
5,068 foreign prisoners in Malaysianprisons. The number accounts for 20.29%
of the total number of prisoners. Therefore
if transfers of prisoners are made possible,
the congestion of Malaysian prisons may
be alleviated by 22.95%. This will not only
lesson the congestion but also avoid
problems such as hunger strikes which areoften sparked by the wish to return to their
homeland, linguistic differences, remandcosts, etc.
However, although the internationaltransfer programs carry benefits
complications arise due to the differencesin form and length of sentences, prison
administration and legal system

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
incompatibilities.

to that of the male inmates.

The difference in sentences above
mentioned is primarily for countries whichcarry out corporal punishment, hanging
and death by firing squads whereas judicial
differences in terms of the penalty for drugtrafficking can sometimes be a mandatory
death sentence but in other countries
traffickers receive a lesser sentence.

In Malaysia, female inmates aresegregated from the male inmates. In
respect of accommodation, the Prison Rules
1953 provides for the following:

Administrative differences may involve
instances where a prisoner loses the benefitof pardons in countries which practiceparole or pardons due to nationalcelebration days.
In Malaysia, the international transfer
of prisoners is not a norm as there are as
yet no treaties with other countries andfurthermore, in Malaysia decisions for suchpolicies are addressed to and tabled by the
Ministry of Home Affairs. All applications
or requests for the transfer of prisoners
must be directly forwarded to the Ministryof Home Affairs. The Prison Department
supplies all relevant information
pertaining to the cases requested and act
upon receiving instructions from theministry.
IX. SPECIAL ISSUES RELATING TO
THE MANAGEMENT OF FEMALE
OFFENDERS
As of 2 March 2000 there were 1,365
female prisoners held in prisonsthroughout Malaysia. Of this number, 881
were at Kajang Female Prison (largest
female prison) while the rest were in thefemale sections of several regional prisonsthroughout the country.
Female inmates in prisons come fromdifferent races and backgrounds and thecrimes they are convicted of are also of
various types. For every crime committed,
the imprisonment sentence is no different“Male and female prisoners shall be
kept absolutely separate from eachother and shall be confined indifferent buildings. The wards, celland yards where women prisoners
are confined shall if possible, be
secured by locks different from thosesecuring the wards, cell and yards
allotted to male prisoners. Women
prisoners shall in all cases beattended by women prison officers. A
male prison officer shall not enter aprison or part of a prison appropriate
to women prisoners except on dutyor unless accompanied by a women
officer.”
Although the number of female inmatesis small, the rehabilitation programs thatare being run by the female prisons are
similar to those at the male prisons. The
programs are geared towards the
preparation of inmates for their eventual
return to the community as law-abiding
citizens and socially productive persons.
The rehabilitationencompasses the following:

programa) Vocational trainingb) Spiritual welfarec) Recreationd) Counselinga) Vocational Training
Convicted female inmates are provided
with opportunities to equip themselveswith a form of skill or trade. The following
trades are normally available:i) Tailoring

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RESOURCE MATERIAL SERIES No. 57ii) Handicraftiii) Hairdressingiv) Laundryv) Domestic Sciencevi) Vegetable Gardeningb) Spiritual Welfare
It is recognised that religion can function
as an important agent in rehabilitation.
With this in view, religious teachers ofvarious faiths visit the prison to impartreligious instruction to the inmates.
c) Recreation
Recreational and extra mural activities
not only contribute towards physical andmental well being but also provide
constructive means of spending leisuretime and assist to relieve tensions,anxieties and monotony. In female prisons,several recreational facilities are madeavailable and singing and culturalactivities are also encouraged.
d) Counseling
In all female prisons, counseling isalways made available to them. They are
more susceptible to feelings of pressures,anxieties and worries - very often worries
about their parents, husbands and children
who are in the outside world. For thisreason, counseling occupies an important
place in the prison rehabilitation program.
Woman can become infected by HIV inexactly the same way as men. It is often
useful for an HIV positive individual toreceive specialised counseling and support
during their sentence. In this way theprisoner has the chance to learn about her
situation, ask questions and express
emotion and learn to cope more effectively
and responsibly with their condition.
Female inmates that conceived during
their imprisonment period will be given a
special diet based on the recommendationof the doctor. During their early stage of350

pregnancy, they will be frequently checkedby the doctor in the prison. However,during the latter stage they will be sent to
the hospital for weekly check ups. They
are always encouraged to give birth at thehospital in order to ensure the good healthof both the mother and the child. Under
the Prison Rules 1953, female inmates are
permitted to keep their children who areunder 3 years of age with them while they
are in prison.
The Prison Department of Malaysia
maintains good relations with the public.
Non-Government Organizations (NGO)have contributed much to the inmate
rehabilitation program. It is very
important that prisoners have some contact
with outside agencies before release, sothat problems such as accommodation,
counseling and job placement can beworked out in advance.
With respect to aftercare assistance andjob placement, organizations such as
Selangor Discharged Prisoners Aid Society(DPAS), Malaysian Care. PENGASIH,PINK Triangle and Narcotics Anonymous
have rendered meaningful assistance. All
the organizations can offer support andadvice to the prisoners. In this way the
problems of losing contact with theprisoners can be minimized.
X. CONCLUSION
In respect of implementing prison
sentences and the treatment of offenders,the Prison Department of Malaysia
subscribes to the concept of humantreatment that stresses a fair and firm
approach when dealing with prisoners. It
also conforms in almost nearly every aspectwith those of the United Nations Standard
Minimum Rules for the Treatment of
Prisoners.

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
There are so many issues which arise in
the Malaysia Prison Department but only
the big and vital issues as above have beenhighlighted and the countermeasurestaken by the management of the prisons.
In this era of rapid change anddevelopment, the Malaysia Prisons
Department realises the fact that it cannot
remain complacent with its present
achievements but continuously seeks to beon the move seeking new innovations suchas the progress of computerisation that willbring a greater efficiency in penal
administrations as well as keep it abreastof modern trends in penology.

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CURRENT ISSUES IN CORRECTIONAL TREATMENT AND
EFFECTIVE COUNTERMEASURES
Gunaratne Kuruppu*
The Department of Prisons in Sri Lanka
which comes under the Ministry of Justice,
Constitutional Affairs, Ethnic Affairs andNational Integration has for many years
been committed to a correctional policy,
where the ultimate objective is torehabilitate and reform convicted offenders
and reintegrate them to society mobilisingcommunity support. Many progressive
measures have been adopted to achieve thisobjective.
In Sri Lanka we have 3 Closed Prisons,2 Open Prison Camps, 6 Work Camps, 2
C o r r e c t i o n a l C e n t r e s f o r Yo u t h f u lOffenders, 14 Remand Prisons and 28
Prison Lock-Ups. All our closed prisons forconvicted offenders have been built over
100 years ago by the British at a time
where the country’s population was about
3 million. The story is almost the same
about remand prisons. Imprisonment isdone at both ends of the criminal justiceprocess. Persons suspected of committing
crime are imprisoned soon after arrest as
remand prisoners, at one end and persons
found guilty are imprisoned at the otherend.
The following statistics show that large
numbers are kept in remand custody.
Hence, it will be seen that no proper
rehabilitation programmes could be
implemented to this type of persons, andthe problems faced by the prison
administration. The problem is not only
keeping them, feeding them, looking after
their health but also producing thousandsof them in courts daily travelling hundreds*

Superintendent of Prisons, Welikada Prison,
Colombo, Department of Prisons, Sri Lanka

352

of miles.
See Table I (Annexed)
Admissions of Unconvicted 1991-1995
See Table II (Annexed)
Admissions of Convicted
1991-1995
A peculiar situation with Sri Lankan
prisons is that the number of unconvictedprisoners far exceeds that of the convicted.
Many factors have contributed to theincrease in crime and the overcrowding ofprisons. It is also a fact that there is very
little that the Department of Prisons can
do to ease the situation. The overcrowdingof the population in urban areas and thescarcity of employment creates a tendency
to resort to evil ways of living. The
commonest among such acts are petty
thefts, pick pocketing, selling of narcotic
drugs and prostitution amongst females.
Other factors too have their contribution
to the overcrowding of prisons. The school
dropouts who have had little or no
vocational training have become more orless a burden to their parents, who are of
the lower middle income groups,
frustration and unrest among the youth
tends to create in them a tendency to form
into gangs and commit violent crimes.
Hence it is seen that the causes attributed
to the increasing rate of crime and theovercrowding of prisons are mainly due tosocio-economic conditions andenvironmental factors prevailing in Sri
Lanka. The effects of overcrowding are felt
not only in the area of space but disciplineand control, hygiene and effective
treatment programmes.

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Institutional Treatment
The Department of Prisons provides
institutional treatment, preliminarily, forconvicted prisoners classified andcategorised under first offenders, reconvicted and recidivist reconvictedprisoners.

visits are not supervised by prison officers.
Inmates are encouraged to build good
relationships with those in the freecommunity, and at the same timeencouraging them to participate incommunity projects on an entirely
voluntary basis.

Closed Prisons
These prisons are meant to be forconvicted prisoners, but due to severe
overcrowding of unconvicted prisoners inremand prisons, unconvicted prisoners areoften located in closed prisons too. These
prisons can be classified as low, medium
security institutions.

Work Release Centre
This centre consists of short-term
prisoners living and working by themselves
on a Coconut Estate in “Open” conditions.
The inmates are supervised by a residential
retired prison officer.

Work Camps
These camps are open institutions withno boundary walls. First offenders
sentenced to terms of imprisonment up to
two years and below are transferred tothese work camps, the concept being thata large number of first offenders withcomparatively short prison terms will be
kept away from contamination with hardcore criminals who remain in closed
prisons. The prisoners located in the camp
work under minimum-security conditions
and these conditions are very much similar
to any other collective farms in thecommunity.
Open Prison Camps
The first camp was established in 1951
in the Central Province of Sri Lanka.
Prisoners located in this camp are selectedprisoners with good conduct, who would
have served one-fourth of their sentence
and with at least two years more to serve.
Here the emphasis is to accustom theinmate to conditions and circumstances
available in the community to which hewould return. Hence, he is given enhanced
freedom and responsibilities, and theprinciple guiding custody is trust. Unlike
visits to prisoners in a prison, families areencouraged to meet inmates often and such

Correctional Centre for Youth
OffendersThis centre consists of youth offenders.
Offenders with pending cases and longterms of imprisonment are located in awalled section of the centre and others in
an “open” section.
Training School for Youthful
Offenders [Borstal]Boys between the ages of 16 and 22 whoare found eligible by courts are sent to thiscentre for maximum terms of 3 years.
Unlike prisoners, these boys are notentitled to remission of sentences, but are
eligible for release on licence after one year.
There is only one training school in thewhole of Sri Lanka.
Remand Prisons
Persons awaiting trial or unconvictedprisoners are located in these prisons andconvicted prisoners with short terms arealso located in these prisons, and convictedprisoners with short terms to attend to jailservices including work in the preparationof food.
Prisoners Involved in Organized Crime
Prisoners who are admitted to prisons
are also classified as organized crime
offenders or hard core on the basis ofreports forwarded by the police. On

353

RESOURCE MATERIAL SERIES No. 57
admission to prison, the police furnish areport on the previous history, modus
operandi and the nature of crimecommitted by the offender. If there are
more than two prisoners in the same case,they are not located in one prison but arelocated in different prisons to prevent close
contacts with each other. They aresegregated from normal prisoners and theircustody is under close supervision andspecial security. As there are no maximumsecurity prisons in Sri Lanka to locate thesetypes of prisoners, special sections havebeen constructed within some of the large
closed prisons for their location. The
location therefore of this category ofprisoners is under maximum-security
conditions.
Prisoners Admitted to Prisons from
Foreign Countries
The offences committed by these foreign
nationals are mainly drug related.
Communicating with these offenders have
posed a serious problem to prison staff asmany of them are unable to speak, read
and write English. With difference inreligion, customs, culture, climate
conditions and food, these offenders
languish in prison custody in virtually selfimposed isolation. These prisoners do not
have, understandably, regular visits. Visits
generally are from the respective
Embassies or Consular Offices.
Vocational Training in Prisons of Sri
Lanka
Every convicted prisoner sentenced torigorous imprisonment is required to work
for approximately eight hours a day. Thisrequirement is met both in the form of
vocational training in industries as well as
on job training in prison workshops. The
dual objective is to train the offenders inorder to enable them to find suitable
employment upon release from prison
custody as well as to utilise their services
for the benefit of the State. The whole354

range of trades that are available in thefree community are made available within
prisons, viz. carpentry, tailoring, laundry,
motor mechanism, printing, bread making,weaving, knitting, masonry, soap making,mat making, brush making, polishing, tatmaking and the manufacture of coir goods.
The prisoners are paid wages according toa grading scheme depending on their skill
and training.
Agriculture and Animal Husbandry
In the prison work camps for short-term
and medium-term offenders and in the
open prison camp for long-term offenders,training is largely in the fields ofagriculture and animal husbandry.
Education, Recreation and Religious
Activities
The Department of Education conducts
adult education classes for the benefit ofprisoners. In some of the institutions,
volunteers too help the department in theseeducational programmes. Facilities arealso provided for the prisoners to sit public
examinations.
Prisoners are also encouraged to takepart in both indoor and outdoor
recreational activities. Facilities areprovided for scouting, wrestling andboxing.
After ceasing labour, facilities areprovided for offenders to follow religious
activities in keeping with their faiths. All
prisons, work camps, open prison camps
and training schools have places of worshipsuch as shrine rooms, chapels, andmosques within the premises and prisoners
are allowed unrestricted access to theseplaces. On important religious occasions,prisoners in open prisons and work camps
are permitted to participate at functionsorganized by the members of thecommunity. Prisoners are allowed to sit
religious examinations, if they so desire,115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
after following classes held in theinstitutions.
Female Prisoners
Female prisoners constitute a very small
population of the total number of prisoners.
In each closed prison there is a separate
section to locate convicted and unconvicted
females. The largest number of female
prisoners are convicted for prostitution,
excise offences, trafficking drugs and petty
thefts. The majority of the women in prison
are between 22 to 40 years old, and theireducational level is low. Although women
who are imprisoned are permitted to bring
their infants to prison with them, thebigger children face the threat of being
neglected and left uncared for andforgotten. Hence some of the females bringchildren up to five years. The Departmentof Prisons in collaboration with the
Prisoners’ Welfare Association havestarted a pre-school in the female sectionof Welikada Prison, Colombo where ateacher is employed by the Education
Department.
The convicted female prisoners are given
training in various vocations such as
tailoring, knitting, weaving and cookery.
Convicted Drug Offenders
Sri Lanka is one of the developing
countries afflicted with the plague of drug
abuse. Severe health, social, and economic
problems are emerging associated with theabuse of drugs. Statistics have revealed
that heroin dependence is commonest
amongst the youth. It is also turning law
abiding young people into criminals.
Property crimes have increased in recent
years as a result of drug addicts committing
theft and burglaries, in order to find money
to purchase drugs to satisfy a craving needwhich surpass all other needs.
From the statistics shown below it isseen, that there has been a steady riseannually in the number of prisoners who
are admitted to penal institutions for drug
related offences. The percentage being over
40% of the total number of admissions ofconvicted prisoners.
See Table III [Annexed]
Table 1 shows the direct admission ofconvicted prisoners according to thehighest number of offences.
A remarkable indication is that narcotic
drug offences have moved to the top of thetable of offences. With the influx of thislarge number of drug offenders, theDepartment of Prisons is now confronted
with a host of new problems hitherto notexperienced in our penal institutions.
The following are some of the problems.
i) It is necessary to keep the drug
abusers separated from the othercategory of offenders for the abusers’
own welfare and that of the others.
However, due to the inevitableovercrowding the prisons have to facewith the admission of drug abusers
in large numbers, it is not possible tokeep them separated in overcrowded
institutions, thus there is a great
possibility of their mixing with others
and promoting the habit of drugs
amongst others.
ii) A number of prison officers have been
subjected to harassment, threats andbodily harm for detecting drugtraffickers and users inside theprisons.
iii) By locating drug offenders and otherinmates including the hard core in
the same prison, the possibility ofplanning organized crimes and drug
offenders getting involved in thesecrimes has been observed.
iv) Instances of officers supplying drugs
into prisons have been detected and355

RESOURCE MATERIAL SERIES No. 57
this has caused a lot of fresh
administrative problems.
v) Also cases have been detected where
the prisoners are involved in the saleof drugs inside the prisons, andsometimes it is also observed that due
to severe competition amongst
themselves, gang warfare andvarious violent incidents take place.

Anyhow considering the importance ofthe programme the department has taken
meaningful steps in setting up twotreatments centres at Navodawa,
Pallekelle and Taldena. The World HealthOrganization through the National
Dangerous Drugs Control Board has
donated a sum of Rs.760,000 for the
implementation of the programme.

The Department of Prisons which has
experienced a very large intake of convicted
drug offenders in recent years hasorganized rehabilitation, therapeutic andeducational programmes in various penal
institutions. These programmes are
spearheaded by prison officers trained in
the rehabilitation of drug offenders. With
the kind assistance of the National
Dangerous Drugs Control Board, 1451
officers of all grades were trained. Twentythree officers with special aptitudes were
given intensive training in counseling by
the University of Colombo.

Those convicted for using drugs such asheroin, opium, hashish and other types ofdangerous drugs are admitted to thecentres, after the detoxification period iscompleted.

They actively participate in all
programmes in their respective institutions
and prevent drugs and unauthorised
substances coming into the institutions.
In implementing these programmes thegreatest obstacle the Department is facingis the severe overcrowding in penal
institutions. Prison overcrowding prevents
the effective implementation of the United
Nations Standard Minimum Rules for thetreatment of prisoners which require theseparation of prisoners taking into accountsuch factors as sex, age, criminal record,
legal reason for detention and treatment
needs. Overcrowding also prevents theclassification and segregation of certain
offenders from others, the young with theold, unconvicted with the convicted, thehardened criminals with the not sohardened, thus the not so hardened leaveprison as hard-core criminals.

356

They are also produced before themedical officer regularly to undergo
medical observation for drug withdrawal
symptoms and treatment. On admission
they participate in the admission
orientation programme conducted by
Prison Welfare Officers where an intensive
briefing is given to the inmates of theobjectives of the centre, the evils of drug
abuse, code of discipline that they shouldobserve and the facilities available to them.
They are encouraged to discuss theirproblem in a group or individually. They
are also subjected to intensive counselingand encouraged to participate in religious
activities including meditation. They are
permitted to have visits and correspondwith relatives.
A letter is sent to the member of theirfamilies by the Commissioner General of
Prisons explaining the programme andtheir responsibility towards therehabilitation of the addict. Where theneed arises family reconciliation is done
and family relationships strengthened
keeping in mind that the family is the mostimportant factor in the reintegration of adrug offender into society.
Literary programmes are conducted at
the centres and inmates encouraged to115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
make use of the library and inculcate
reading habits and write articles to our“Sannivedana” paper.
Inmates are detailed to work on
agricultural projects and some are selected
for vocational training according to theirneeds. The programmes are organized inconsultation with the vocational training
authority so that inmates could receive a
certificate of competence on completion of
the course. They are motivated tophysically exercise, lift weights andparticipate in sports activities.
In addition the following programmes
are initiated:i)Counseling.
ii) Regular film and video shows.
iii) Lectures in the fields of religion,
health, education, sports,
community development, crime
prevention and drug rehabilitation.
iv) Dramas.
v) Literary association meetings ofinmates.
vi) Family awareness meetings andcrisis intervention programmes.
Action is also taken to prepare social
reports by Prison Welfare Officers to enable
them to be sent on home leave, normal
release and premature release underconditions [Licence Scheme or Parole].
Inmates are assisted to return to society
to lead a normal and productive life
harnessing the support of volunteers,
members of the Prisoners’ Welfare
Association, Social Workers, Prison Welfare
Officers and organisations like the
Sarvodaya, Lions, Leos and Rotarians who
do follow up work.
Effective Countermeasures
The Government of Sri Lanka, being
conscious of the illicit drug problem

especially in relation to heroin andcannabis and its far reaching anddestructive socio-economic implications, isdetermined to combat the problem bydeveloping effective strategies based on:a. Enforcement(i) Building - up intelligence on
trafficking, effectuatinginterdiction at all points of entry
and strengthening operational
capabilities of all enforcement
agencies and personnel.
(ii) Extend scope of existing legislation
to deal effectively not only withcarriers but more importantly withtraffickers and financiers withmaximum penalties anddeprivation of proceeds of theircrimes.
(iii) Taking necessary steps to (a)expedite the hearing of drug cases,(b) establish standard proceduresfor the safe handling anddestruction of court productions ofdrugs.
(iv) S t r e s s i n g a l t e r n a t i v e s t oimprisonment such as treatment
and rehabilitation programmes for
dependents wherever appropriate.
(v) Supporting international efforts tocurb the production, transiting andtrafficking of drugs.
(vi) Entering into treaties with othercountries to cover exchange ofprisoners, mutual legal assistance,
extradition and controlled delivery.
b. Preventive Education and Public
Awareness
Sri Lanka is taking effective steps in theimplementation of the 1988 UN
Convention. Action is taken to forfeit
vehicles and other methods of transport ofdangerous drugs.
In 1997, a training programme wasorganized in Sri Lanka on controlled

357

RESOURCE MATERIAL SERIES No. 57
delivery by the United Kingdom Customs
and excise officials, several foreign
participants in the Asian countries
participated.
Alternatives to Imprisonment andEffective Countermeasures Taken to
Reduce the Prison Population
The following are some of the techniques
used.

an offender on whom a sentence ofimprisonment not exceeding two years may
be imposed, the periods of suspension being
not less than five years. If a subsequent
offence is committed during the operational
period of suspension, the offender is liable
to serve the suspended sentence. Where
no offence is committed during theoperational period the suspended sentence
is deemed never to have been imposed.

a. Probation
Probation as a method of treatment was
first introduced in Sri Lanka with thepromulgation of the Probation Offenders
Ordinance No. 42 of 1944.

c. Community Service Orders
The provisions relating to Community
Service Orders are contained in the Codeof Criminal Procedure [Act No. 15 of 1979
amended by Act No. 49 of 1985].

The Probation Service which was abranch of the Prison Department until
1956 was established as a new department
called the Department of Probation andChild Care Services, under the Ministry ofSocial Services.

Community Service Orders enable a
court to direct an offender to perform
community service in lieu of sentencing
him to imprisonment and was first
introduced to the Laws of Sri Lanka in
1974. In 1985 the provisions relating tocommunity service were amended for wider
utilisation and further amended asCommunity Based Correctional Act No. 46
of 1999.

This department now consists of the field
services manned by 130 trained probation
officers. Increasing use of probation officers
has been made every year and the service
is making a definite contribution in the
rehabilitation of offenders. The percentage
of success in rehabilitation has been in theneighbourhood of 82 percent. The majority
of offenders who have been placed on
probation would have otherwise been sent
to prison and this ensures therehabilitation of the offender in his
environment and in the community.
Furthermore, probation saves money for
the State and also prevents congestion in
the prisons.
b. Suspended Sentence of Imprisonment
Suspended sentences of imprisonment
were introduced into the Law of Sri Lanka
in 1972. These are generally imposed
where a court decides that an offence isserious enough to justify a short term of
imprisonment. They may be imposed on

358

This act was certified on 10 December
1999 by the Parliament of the Democratic
Socialist Republic of Sri Lanka. A presentence report is furnished to the court
including the following:i)ii)

The age of the offender;
The social history and backgroundof the offender [including the names
and ages of the persons who aredependant on the offender];iii) The medical and psychiatric historyof the offender;iv) The educational background of theoffender;v) The employment history of theoffender;vi) Any other offences of which theoffender has been found guilty or
for which he or she is charged or115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
indicted;vii) The extent to which the offender
has complied with any earlier
sentence or is complying with any
sentence currently in respect of him
or her;viii) The financial circumstances of theoffender;ix) Any special needs of the offender;x) The employment history of theoffender’s spouse and the income
earned by him or her;xi) T h e c o u r s e s , p r o g r a m m e s ,treatment or other assistance that
could be made available to theoffender and from which he or she
may benefit;xii) The facilities available for the
performance of unpaid community
work.

have served five years of their sentence[whatever the aggregate term] provided
they have served at least one year in an
open prison camp becomes eligible forrelease on licence.

No Community Based Correction Ordershall be entered into respect of an offender,
unless the offender consents in writing, inthe prescribed form to the entering of suchan order.

Up to date 17,943 prisoners have beenreleased on licence in Sri Lanka since theinception of this scheme. Of this number,
701 have successfully completed the periodof their supervision. Only 36 prisoners
have violated their conditions of releaseand have had their licence revoked.

In terms of the present law the court
specifies the place in which the community
service is to be performed and the numberof hours and the period within which it is
to be performed. Such orders may be varied
to suit altered circumstances or revoked fornon compliance in which case an offender
will be liable to another penalty.
d. Release of Prisoners on Licence[Parole]A scheme for release on licence wasintroduced in 1970 for the benefit of longterm prisoners. Due to the low rate ofviolations this scheme has been reviewed
on two occasions and at present extended
to all prisoners sentenced to four years ormore who have completed half theirsentence, and all prisoners who have
served six years of their sentence [whatever
the aggregate term], and all prisoners who

A social report comprised of theantecedents of the offender, some detailsof the offence, vocational and other training
he had in prisons, information regarding
his prospects for employment and a planfor his rehabilitation in the community is
prepared by prison welfare officers andsubmitted to the licence board. At every
licence board hearing, the offender ispresent and if for any reason he is notgranted release on licence he is informedof the facts so that he could adjust himself
and look forward to being present at
another hearing.

e. Other Re-Integration Programmes
Home Leave
The privilege of home leave for long term
prisoners up to a period of 7 days at a time
was introduced in Sri Lanka in 1974. The
purpose is to help the offender to maintainhis relationships with the members of his
family and that of the community, also it
will facilitate him to re-establish his
contacts in the area to which he will return.
The prisoner will also be afforded theopportunity to interview prospective
employers and assist him to be reintroduced back to the community to which
he will return.
I have given you an account of what wetry to achieve in our attempts torehabilitate the criminal offender. We, in

359

RESOURCE MATERIAL SERIES No. 57
Sri Lanka, can be proud that all the known
techniques that are in use throughout theworld are being tried out successfully in
our penal institutions.

360

-

Battcaloa Prison

Total

59,295-

Kalutara Remand Prison

M

0

1,687

443

0

5,569

1,658

1,120

3,411

0

4,348

3,190

0

5,819

2,842

5,965

664

131

2,133

630

-

5,203

1,888

1,394

3,128

-

4,929

3,303

-

4,134

3,997

6,069

976

9,896 10,191

F-Female

T
M

976

131

2,133

677

0

5,781

1,987

1,394

3,408

0

5,189

3,400

0

4,821

3,997

6,069

370

190

1,999

665

0

4,532

2,145

1,963

3,600

-

4,030

3,138

-

3,767

3,176

6,900

T-Total4,311 66,456 61,051

-

-

47

0

578

99

-

280

-

260

97

-

687

-

-

-

- 10,191 10,419

2,263 16,302 14,157

F

1992
T
M

370

190

1,999

717

0

5,072

2,250

1,963

3,942

0

4,324

3,265

0

4,371

3,176

6,900

276

1,529

598

-

4,385

1,906

2,187

3,474

999

3,204

3,562

-

6,959

243

6,769

193

9,126

4,295 65,346 59,736

-

-

52

-

540

105

-

342

-

294

127

-

604

-

-

-

- 10,419

2,231 16,388 14,326

F

1993

See original report because these numbers do not match the original one.

M-Male3,870 63,165 62,145

-

-

32

411

-

-

1,687

416

5,153

Negombo Prison

Watupitiwala T.S.Y.O.

Trincoamlee Remand Prison

-

70

1,120

1,588

Matara Prison

Tangalle Remand Prison

Kegalle Remand Prison

317

3,094

-

210

90

3,100

4,138

-

Anuradhapura Prison

Galle Prison

-

691

-

Badulla Prison

Jaffna Prison

2,842

5,128

Bahgambara Prison

Kandy Remand Prison

-

-

664

5,965

-

New Magzie Prison

T2,044 16,553 14,039

F

1991

9,896

14,509M

Mahara Prison

Colombo Remand Prison

Welikada

Institution

TABLE 1

T
M

276

1,529

649

0

4,726

1,978

2,187

3,803

1,080

3,346

3,666

0

7,529

243

6,769

193

3,658

1,824

777

-

4,940

2,347

2,212

4,103

1,096

3,289

4,518

-

6,335

1,730

6,862

82

9,126 10,919

3,557 63,293 66,201

-

-

51

-

341

72

-

329

81

142

104

-

570

-

-

-

-

1,867 16,193 11,509

F

1994

DIRECT ADMISSIONS OF UNCONVICTED PRISONERS BY INSTITUTION, 1991-1995[ANNEXURE I]

T

82

3,658

1,824

855

0

5,333

2,442

2,212

4,499

1,166

3,441

4,809

0

7,203

1,730

6,862

4,918 71,119

-

-

78

-

393

95

-

396

70

152

291

-

868

-

-

-

- 10,919

2,575 14,084

F

1995

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

361

362

Welikada-

Battcaloa Prison

18,008-

Total

Kalutara Remand Prison
0

722

67

27

1,278

315

195

710

0

767

546

0

162

2,219

0

0

0

-

639

171

39

1,065

235

258

598

-

982

1,060

-

-

2,608

-

-

-

9,791

M

M-MaleF-Female

T
M

0

639

184

39

1,238

239

258

630

0

1,004

1,096

0

149

2,608

0

0

0

-

384

286

71

585

219

367

766

-

839

945

-

-

2,221

-

-

-

805 18,251 17,865

-

-

13

-

173

4

-

32

-

22

36

-

149

-

-

-

-

376 10,167 11,182

F

T-Total1,011 19,019 17,446

-

-

10

57

-

27

722

192

1,086

Negombo Prison

Watupitiwala T.S.Y.O.

Trincoamlee Remand Prison

-

20

195

295

Matara Prison

Tangalle Remand Prison

Kegalle Remand Prison

60

-

19

5

-

650

Galle Prison

748

Badulla Prison

-

-

541

-

Jaffna Prison

162

2,219

Bahgambara Prison

Kandy Remand Prison

-

-

-

-

New Magzie Prison-

Anuradhapura PrisonT543 12,011

F-

11,468M

Mahara Prison

Colombo Remand Prison

TABLE II

T

0

384

305

71

702

225

367

818

0

868

987

0

104

2,221

0

0

0

6

220

248

83

694

462

334

710

132

637

907

-

-

2,324

-

-

-

8,771

M

779 18,644 15,528

-

-

19

-

117

6

-

52

-

29

42

-

104

-

-

-

-

410 11,592

F

6

220

266

83

811

464

334

752

142

659

935

0

79

2,324

0

0

0

9,166

T

610

309

257

46

514

361

328

608

138

442

1,267

-

-

2,326

-

-

-

8,164

M

713 16,241 15,370

-

-

18

-

117

2

-

42

10

22

28

-

79

-

-

-

-

395

F

DIRECT ADMISSION OF CONVICTED PRISONERS BY INSTITUTION, 1991-1995[ANNEXURE II]

610

309

279

46

575

370

328

635

144

450

1,321

0

108

2,326

0

0

0

8,392

T

523 15,893

-

-

22

-

61

9

-

27

6

8

54

-

108

-

-

-

-

228

F

RESOURCE MATERIAL SERIES No. 57

TABLE III

176
136
178
117
116
103
1,725

Looting

Viewing Blue Films

Simple Assult

Cheating

Acceptance or Retention of Stolen Property

Maintenance

Other Offences
2,772

166

161

163

244

-

309

331

1,080

2,248

6,654

1990

3,227

204

295

125

165

75

259

164

1,140

5,723

7,642

1991

8,014 14,128 19,019

244

Appearing in Public Places Drunk

Total

853

1,275

Excise Offences

Theft

3,091

Narcotic Drug Offences

1989

3,687

262

421

159

253

74

358

435

1,466

4,873

6,656

1993

3,462

272

387

154

262

10

308

340

1,384

4,002

5,660

1994

18,251 18,644 16,241

3,917

163

492

140

253

74

267

457

1,645

4,928

5,915

1992

2,806

361

529

155

223

1

351

334

1,008

4,652

7,349

1996

15,893 17,769

3,336

338

379

139

255

30

342

355

1,376

4,162

5,181

1995

4,135

415

643

143

372

14

380

440

1,127

4,932

8,199

1998

18,143 20,800

3,519

472

463

124

243

3

256

360

758

4,806

7,139

1997

TOTAL NUMBER OF CONVICTED PRISONERS FOR DRUG RELATED OFFENCES, 1989-1998[ANNEXURE III]

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

363

RESOURCE MATERIAL SERIES No. 57

CRIME PREVENTION: CURRENT ISSUES IN CORRECTIONAL
TREATMENT AND EFFECTIVE COUNTERMEASURES
Sivakorn Kuratanavej*
II. ACTUAL SITUATION OF
OVERCROWDING

I. INTRODUCTION
When making the comparative study on
correction activity, one always firstly looks
at the imprisonment rate of each country
to overview the general situation. Looking
into the statistics of Thailand, one might
be astonished of the very high rate of
imprisonment, which is 1:270. In 1999,
there were 133 prisons and correctional
institutions all over the country, withtotally 10,909 correctional officials. The
prison population was 205,340 while thestandard capacity was only for 84,223
inmates. Overcrowding has become aproblem for the Thai correctional system
during this last decade, and the situation
continues aggressively. The effect ofovercrowding is not only on the inmate’s
daily living but also the official’s difficultyin operating of custodial measurement aswell as treatment programs for offenders.
*

Senior Penologist, Department of Corrections,ThailandA. Prison Population
During this last decade, prison
population in Thailand has been increasing
dramatically. In certain years, there wasa collective royal pardon related to an
important occasion of the country; someconvicted inmates were released. In 1994,
the number of inmates reached 103,329,
which was considered as very high. Fiveyears later, the number has doubled andreached 203,702 inmates. Even though
there was a collective royal pardon at theend of 1999, the prison population as ofMarch 2000 was 200,310 inmates. Table 1
shows prison population during these lastten years.
B. Main Causes of Prison
Overcrowdingi) The Increase of Drug Offenders:
There are various factors that leadto higher number of drug offenders

TABLE 1
Prison Population in Thailand

*

364

Year
Male
FemaleTotal
1991
81,9806,071
88,051
1992
68,097
5,212
73,309*1993
83,523
6,784
90,307
1994
94,776
8,553
103,329
1995
101,130
9,898
111,028
1996
92,353
10,849103,202*1997
109,885
16,070125,955
1998
141,131
23,320164,451
1999
172,620
32,720205,340
2000
165,485
34,825200,310*
In fiscal years 1992, 1996 and 2000, there were collective royal pardons.

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
that amphetamines (previously
considered as a legal stimulantdrug) were illegal drugs on thesame level as heroin. Punishment
for a possessor or seller ofamphetamine shall be as severeas that for heroin. The situation
has become catastrophic.
Amphetamines are easy to findand have widely spread among
various groups of people including
students and laborers.
Suppression has led to morearrests and more drug offenders
in prisons.

in Thai prisons.
-

The government’s policy on drug
suppression: The suppression
strategy is done by the demolishingof drug production sources and byarresting drug users and drug
dealers. The main sentence
imposed on drug offenders is
imprisonment. The more drugs aresuppressed, the higher the numberof drug offenders. In the past,offense against property was themost common offence in prisons,but since 1996, drug offenses havetopped other offense in Thai prisonsand have climbed up remarkably
fast as shown in Table 2.

-

The Public Health Drug
Definition: In 1996, the Ministryof Public Health has stipulated-

The Prime Minister’s Order on
Treatment of Drug Offenders: In
1998, the Office of the Prime
Minister has issued the orderconcerning the treatment of drug
offenders. It indicated that drug

TABLE 2Type of Offenders in Thai Prisons80,000
Offense Against
Property

Number of Offender

70,000

Offense Against
Narcotic Laws

60,00050,000

Offense Against
Life

40,000Bodily Harm
30,000Sex Offense

20,00010,000

Offense Against
Society Security0
1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
Year*

OthersSee original report. This is not the as same as the original due to lack of the number
of offenders.

365

RESOURCE MATERIAL SERIES No. 57
users should receive treatment
program while drug dealers
should receive severe punishment
and should not receive any lenient
treatment or commutative
pardon. The order has had adirect effect on drug dealers inprisons who shall have to spend
longer time in prison than otheroffenders.
Long-term
imprisonment is certainly one
main cause of overcrowding.
ii) The Incarceration of Unsentenced
Inmates: Among the total prison
population, 38.72 percent are inmates
awaiting investigation and inmates
awaiting trial. Generally, remandees
or unsentenced inmates areincarcerated in Remand Prison. As
for Provincial Prison, there must be
a separate section for remandees
which had previously been expected
as 10 percent of the total capacity.
However, at present the number ofremandees represents almost half ofthe total prison population. Most
prisons are overcrowded. Someprisons have to incarcerateunsentenced inmates together withconvicted prisoners due to the lack offacilities.
iii) The Frequent Use of Imprisonmentin Thai Criminal Justice System: In
Thailand, patterns of punishment
vary from fines, forfeitures ofproperty, imprisonment to capital
punishment. Practically, the main
punishment is imprisonment. Those
who cannot afford to pay a fine shallalso have to be imprisoned.
Imprisonment could be replaced byprobation in case of first-time offense.
Compared with probation,
imprisonment rate is still very highand is imposed to every type ofoffenses including petty offense,
gambling, offense against traffic
laws, etc. The frequent use of
imprisonment has simply made an
overcrowding situation in prisons.
iv) The Strict Regulation of Pre-Release
Programs of the Department ofCorrections: In Thailand, after the
imprisonment term is imposed, theDepartment of Corrections has a
responsibility to keep the offenders
in custody until the termination of
their sentence term. During
incarceration, if the inmates show
better attitude, good conduct, andtheir readiness to return to society,
the Department of Corrections is
empowered to release them prior totheir sentence term. Pre-releaseprograms include Good Conduct
Allowance, Public Work Allowance,
and Parole. Practically, to comply
with these three programs, especiallyparole, the conditions are very strict
and quite difficult to obtain. The
Department of Corrections has

TABLE 3
Number of Conditional Released Prisoners during the Last 5 Years
Year
1995
1996
1997
1998
1999

366

Good Conduct
No.
%14,003
20.57
17,46023.62
17,54326.85
18,67024.79
17,671
18.21

Public Work
No.
%
8,287
12.18
7,935
10.73
4,608
7.05
5,868
7.79
6,093
6.28

Parole
No.
%
2,088
3.07
2,109
2.85
802
1.23
1,114
1.48
1,016
1.05

TotalConvict
No.
%
68,058100
73,920100
65,336100
75,320100
97,027100

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
realized that pre-release programs
are one good way to solve theovercrowding problem and has tried
to promote program implementation,
but the number of conditional
releases are still relatively low dueto the strict conditions. The numberof inmates receiving conditional
release during these last five years
is shown in Table 3.
C. Countermeasures for Alleviating
Long Term Detention ofUnsentenced Inmates
As for Thailand, it might be difficult toalleviate the long-term detention of
unsentenced inmates since there are no
facilities for custody apart from prisons.
Generally, at every police station, there isa custody cell for unsentenced offenders or
detainees. However, most police cells are
small, limited in number, and lack of goodhygiene. It is necessary to send
unsentenced offenders and detainees to beincarcerated in the overcrowded but yet
cleaner prisons and correctional
institutions.
The basic measurement that would
alleviate the long-term detention of
unsentenced offenders is bail granting.
However, this measurement is practicallyfor those who can afford with their property
and may not be affordable for the poorer.
The solving of this problem might be doneby the change of bail guarantor, which
could be honorable persons, working
status, or some possible alternatives.
A c t u a l l y, t h e m o s t i m p o r t a n t
countermeasures to alleviate the long-term
detention of unsentenced inmates are
speedy trial, which needs good cooperationfrom every agency in the criminal justicesystem. Due to the circumstances inThailand where there are a lot of arrestsas part of crime suppression, the trial cases
are too numerous and beyond the capacityof public prosecutors, judges, or otherofficials in the system. Consequently,
speedy trials are too difficult in practice.
D. Effective Use of Alternative
Measures to Imprisonmenti) T h e E x p a n s i o n o f P r o b a t i o n
Supervising: In order to alleviate
imprisonment, it is important thatprobation be imposed to some certain
crimes; so that the offenders can betreated and supervised in their own
c o m m u n i t y. T h e n u m b e r o nprobation in Thailand is relatively
low compared to imprisonment. The
expansion of probation is considered
as one important measure in thisissue.
ii) The Establishment of Alternative
Punishment Schemes to
Imprisonment: For some petty
offenses, there should be appropriate
types of punishment rather thanimprisonment such as homedetention, community redemption
work, weekend detention, etc.
iii) The Establishment of Alternative
Punishment Schemes for Drug
Addicts: Upon the arrest of a drug
offender, the offender should be
scrutinized and diagnosed whether
he/she should receive the compulsory
drug treatment program or
imprisonment. Compulsory drug
treatment programs may be operated
in either a drug treatment center ora boot camp system.
iv) The Expansion of Community-Basedand Aftercare Schemes: It has beenrecognized that community-based
and aftercare programs areimportant activities in terms ofrehabilitation and alleviation of
imprisonment. The Department ofCorrections should consider changing
the regulations that has limited thenumber of conditional releases.
Furthermore, projects on pre-367

RESOURCE MATERIAL SERIES No. 57
released in the community should be
encouraged, so that pre-released
prisoners should be able to stay infacilities situated in the community
where they can find jobs and adapt
themselves to their society before thetermination of their sentence term.

both the relatives and prison staff.
b. Clothing
In Thailand, clothing necessity thatshould be provided to each prisoner
consists of:-III. ACTUAL SITUATION AND
PROBLEMS OF PRISONCONDITIONS
A. Implementation of the Rules inThailanda. Food
In Thailand, the budget that the
Department of Corrections receives for foodof each prisoner per day is 27 Baht (US$00.73). According to Thai Penitentiary Act,
food shall be provided to a prisoner at least
twice a day. Practically, prisons andcorrectional institutions serve three meals
to prisoners. In case of religious restriction
about food like Muslim, proper food shallbe prepared for the prisoners.
As for the received budget, the 27 Baht
is spent on rice, side dishes and cooking
gas. It is very low and does not deem toproduce sufficient quality and quantity offood. The Department of Corrections has
raised this problem to the government andwas approved for the new rate of 32 Baht
( U S $ 0 0 . 8 6 ) p e r p e r s o n p e r d a y.
Unfortunately, due to the economic crisisof the country, the new rate has not yet
been equipped.
Practically, every prison and correctional
institution has ameliorated the problem offood for prisoners by allowing relatives tobring some food for the prisoners
occasionally. However, the bringing of food
could be a channel of drug smuggling into
prisons. The problem is partly solved by
the establishment of store in front of a
prison to cook and sell food to relatives infair price. Food selling is convenient for

368

-

-

Prison Clothes
2 sets/person/year
Loincloth (Traditional All-purpose
Cloth)
1 piece/person/year
Underwear
2 pieces/person/yearTowel
1 piece/person/2 years

The above necessity seems to be very
limited and might not be sufficient for one’s
personal use. Nonetheless, theDepartment of Corrections is not yet able
to provide such necessity to every inmate
due to the lack of budget allocation. In
some prisons where there is garment
factory inside, prison clothes may be
produced and provided to every inmate ona self-help basis. But this is only an
exception. The Department cannot provide
sufficient clothing to prisoners. Problem
is solved by letting the inmates using theirpersonal clothes. Prison clothes is used
only when bringing the inmates outside theprison e.g. during transportation to andfrom the court and while performing public
work in the community.
c. Housing
Housing or facility is one of the main
problems that the Department ofCorrections has encountered. The
unexpected rapid increase of prisoners hasbrought the overcrowding circumstance,
especially during nighttime when theinmates have to sleep tightly in dormitory
cell.
The standard capacity of prison in
Thailand is set by the calculation of

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
minimum sleeping floor space in thedormitory cell. Standard capacity for one
inmate is 1 meter in width and 2.25 meterin length, totally 2.25 square meter.
The standard capacity varies when there
is a construction of more facilities or the
expansion of dormitory cells. In 1998, total
floor space was 156,687.00 square meter.
The capacity was 69,638 inmate. The
prison population was 164,451 inmates andthe number beyond the standard capacity
was 94,813 inmates. Later on in 1999,
there were more facilities and the total floor
space was 189,208.42 square meter. The
capacity was 84,223 inmates. The prison
population was 205,340 inmates and thenumber beyond the standard capacity was
121,117 inmates. Housing construction
seems to be very slow and can never catch
up with the rapid increasing number
inmates.
So as to solve the problem and to planfor the future, the Department ofCorrections has proposed to thegovernment various construction projects,
some of which were accepted while somewere not. Samples of construction projects
are:
-

-

-

Improvement of Prison Facilities
Project: The Department had
proposed four projects, two of whichhave been approved while the othertwo do not receive budget for
operation.
Construction of Regional Maximum
Security Prison Project: The
Department had proposed fiveprojects, two of which have been
approved while the other three do notreceive budget for operation.
Construction of a Prison to Substitutethe Old Prison in Urban Area Project:
The Department had proposed 31
projects, 8 of which have been
approved while the other 23 do notreceive budget for operation.
B. Factors Impeding Satisfaction of
the Rules and Their Effective
Countermeasures
In the administration of correctional
activity, the Department of Corrections has
basically followed the Standard Minimum
Rules for the Treatment of Prisoners.
Correctional officers at every level shallreceive knowledge on the rules throughtraining program. In some aspects, Thai
prisons and correctional institutions havetreated the offenders better than the
stipulated rules, even though in some otheraspects it is not able to do so. Considering
the preliminary observations of the rules
indicating that “In the view of the great
variety of legal, social, economic andgeographical conditions of the world, it isevident that not all of the rules are capableof application in all places and at all time.
They should, however, serve to stimulate
a constant endeavor to overcome practicaldifficulties in the way of their application”,
the Department of Corrections is confident
in its application responding satisfactorily
to the rules. The treatment of prisoners isbasically based on the rules and on thesuitable circumstances of Thai culture.
There is no such thing like the breach ofhuman right or inhumane treatment of thesystem.
The applicable of the rules in Thai
correctional system is impeded in some
aspects as follows:
Separation of Categories: The rules
indicate that “Untried prisoners shall be
kept separate from convicted prisoners.” Aspreviously mentioned, prisons responsible
for taking in custody of untried prisoners
are Remand Prisons or Remand Sectionsin Provincial Prisons. Due to the rapid
increase of prisoners and overcrowding
problem, it becomes difficult to separate theuntried prisoners, especially during

369

RESOURCE MATERIAL SERIES No. 57
daytime. During nighttime, separation is
likely to be applicable. In some limited
facilities such as female section inprovincial prison, it is not possible at all toseparate untried prisoners from convict
ones because of a small scale of the section.
The solving of problem is done bytransferring convicted prisoners to regional
female correctional institutions. The
transfer of prisoners can cause trouble
because they may be too far from therelatives to pay visits to them.
Accommodation: The rules indicatethat minimum floor space should be
provided to prisoners. The Department ofCorrections has basically stipulated
minimum floor space for one prisoner, but
due to the overcrowding problem in mostprisons, the minimum floor space can not
be met.
Medical Services: It is indicated that“At every institution there shall beavailable the services of at least one
qualified medical officer who should havesome knowledge of psychiatry.” In thisregard, one thing that every government
agency in Thailand shares in common is
the lack of medical doctors. The cause ofthis problem is because the production of
medical doctors is very limited and a lot of
doctors prefer working in private sector to
public one. Consequently, the Departmentof corrections cannot provide medical
doctors in every facility. Medical service isavailable in very few prisons that are
equipped with necessary medical facilities.
If the prisoners are sick, either bygeneral disease or mental sickness, theyshall be transferred to nearby public
hospitals. Sick inmates requiring longterm treatment shall be transferred toCentral Correctional Hospital, which is the
only hospital of the Department ofCorrections.

370

C. Actual Situation of HealthControl for Inmates andMeasures for Improvement
There are 133 prisons and correctional
institutions throughout the whole country
while there is only one hospital with its
capacity of 300 beds. In every prison, there
is a clinic where basic medical assistanceis available. Sick prisoners requiring
medical treatment are to be transferred tonearby public hospital and those who needlong-term treatment shall be transferredto the Central Correctional Hospitalsituated in Bangkok. Health control for
inmates is conducted by the Medical
Services Division and by the Central
C o r r e c t i o n a l H o s p i t a l . Tw o m a i n
problematic situations are AIDS and TB.
a. AIDS Situation
Comparing to general population of thecountry, inmate population has muchhigher infection of AIDS. A random blood
testing was conducted to 400 general
inmates in Klong Prem Central Prison in
October 1998, it was found that 10 percentof the inmates were infected with AIDS.
The number could have been much higher
if conducting to drug addicted inmates.
The inmates infected to AIDS who areseriously sick shall have to be transferredto the only Central Correctional Hospital,
which has its capacity of 300 in-patient
beds. This has led to two main problems:
overcrowding the hospital and an
extremely high death rate.
b. TB Situation
In connection to AIDS situation, one
serious disease that follows is Tuberculosis.
The death rate from TB has increased. In
1998, 24 percent of sick inmates in thehospital died of TB, having spread thedisease to many other inmates beforehand
due to overcrowding circumstances. It isfound that the statistic of TB infection of
the inmate population is ten times higher
than the general population. The

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
treatment of TB needs at least 6-9 months
and should be closely supervised by medical
technicians so as not to spread the disease
to others. As a matter of fact, keeping the
TB infected inmates in custody is
considered as an advantage in terms of
medical treatment and prevention of
disease spreading to people in thecommunity. The problem of Departmentof Corrections is un-sufficient medical
services and inpatient beds to serve thehigh number of sick inmates.
IV. CURRENT TREND OFPRISONERS AND THEIR PROBLEM
A. Foreign Prisoners and Issues of
Their Transfer
a. Foreign Prisoners
At present, the advance oftransportation and communication makes
the world smaller. The international crime
becomes numerous. Looking back 30 years
earlier, there was no foreign prisoner inThai prisons. As of December 1999, there
were totally 5,034 foreign prisoners
consisting of 4,454 males and 580 females
in prisons and correctional institutions allover the country. Among this number,
81.96 percent were Asian, 12.24 percent
were from Africa, and the rest of 05.80
percent were from Europe, America andOceania.
As for type of offense, the most frequent
offense is offense against narcotic drug
(52.52 percent). The other offenses
committed by foreign prisoners are offense
against property, against life, false
document, others respectively.
In regard to treatment program, foreignprisoners basically receive the same
treatment program as Thai prisoners.
However, considering that foreignprisoners are serving their time in a place
too far from their home, with different
language and culture, certain leniency isgiven as far as the prison would consider
appropriate.
b. Transfer of Prisoners
Tr a n s f e r o f p r i s o n e r r e c a l l s t h eresolution 13 adopted by the 6th United
Nation Congress on the Prevention of
Crime and Treatment of Offenders held in
Caracas, Venezuela in 1980. In Thailand,transfer of prisoner is operated in two
categories: the transfer of prisoner to serve
the remaining sentence term in his/hercountry of nationality and the transfer ofprisoner as mutual assistance in criminal
matters.
i) Repatriation Transfer of Prisoner: In
1984, Thailand has issued “The
Legislation on Procedure for
Cooperation between States in the
Execution of Penal Sentence B.E.
2527.” With stipulated provisions,Thai prisoners in foreign countries
can be transferred to serve theirsentence in the Kingdom, and foreignprisoners in the Kingdom shall beable to continue to serve the rest of
their sentence term in theirrespective countries.
The idea of prisoner transfer had
been initiated in 1978 between
Thailand and the USA. However, thenegotiation and administrative
process took periods of time. The firsttreaty of prisoner transfer between
Thailand and the USA was signed in
1982. At present, the operation oftransfer treaty is as follows:-

Transfer treaties have been signed
and become effective with 13
countries that are: the USA,
Canada, France, Spain, Portugal,
P o l a n d , G e r m a n y, S w e d e n ,Austria, Italy, United Kingdom
and Northern Ireland, Finlandand Denmark.

371

RESOURCE MATERIAL SERIES No. 57-

Tr a n s f e r t r e a t i e s a w a i t i n g
ratification with two countries
that are: Switzerland and Israel.
- Tr a n s f e r t r e a t i e s p e n d i n gnegotiation with seven countries
that are: Czech Republic, Peru,
The Philippines, Swaziland,
Nepal, Estonia and Hong Kong.
ii) Transfer of Prisoner as Mutual
Assistance on Criminal Matter: The
problems of crimes affect the public
security and the economic stability of
the country. With the technologicaldevelopment, various crimes start tomove across the boundaries of two or
more countries. The growth andexpansion of transnational crimes
stimulate many authorities toimprove and implement themeasures at international level withthe main purpose of punishing thealleged offenders in order tostrengthen and lubricate the criminal
justice system. Extradition andbilateral agreements on mutual legal
assistance in criminal matters are
considered valuable tools in the fightagainst transnational crimes.
In Thailand, apart from “The
Extradition Act B.E. 2472”, “The
Mutual Legal Assistance in Criminal
Matters Act B.E. 2535” is anotherimportant legislation. It provides
assistance in criminal matters toforeign states i.e. taking thetestimony and statement of persons,providing documents, records andevidence for the prosecution of thealleged offenders to the requestingstate. The new concept on mutual
legal assistance brings about a great
success for the effective international
cooperation.
According to this mutual
assistance transfer scheme, some372

prisoners, both Thai and foreign
nationalities, have been transferred
to another states to be present in theprosecution of some criminal cases.
The transfer has shown the attemptof cooperation in criminal justicesystem at the international level.
B. Drug Related Prisoners
In Thailand, narcotic drug is a problem
that has occurred for very long time. The
addiction, possession, producing, selling or
trafficking of drugs are illegal, and thepunishments shall be imprisonment, life
imprisonment or capital punishment.
Notwithstanding the attempt of the Thaigovernment in prevention and suppressionof narcotic drug, the problem has neverbeen diminished from the Thai society.
Thailand may be the only country thatprovides specific facility to incarcerate drug
offenders called “Correctional Institution
for Drug Addicts”. The six correctional
institutions for drug addicted are situatedin different regions of the country. The
institution is responsible for theincarceration of drug offenders, both drug
addicts and drug dealers. The offenders ofother offenses, even though they havehistory of drug using or drug relating, theyshall not be incarcerated in the correctional
institution for drug addict. Apart fromtaking the inmates in custody which is themain responsibility of the Department ofCorrections, the institution for drug addicts
shall have to provide drug treatment
programs for the addicts. As for drug
dealers, after conviction, they shall betransferred to other prisons since they are
considered as criminals, not drug addicts.
Now that the number of drug offenders
in high, the six correctional institutions for
drug addicts are not able to intake thewhole number. It is necessary to
incarcerate drug offenders in various
prisons throughout the whole country. At

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
present, more than half of prisoners in mostprisons and correctional institutions are
drug offenders.
Drug treatment has become one
important mission of the Department ofCorrections. Practically, it is wellrecognized that after a period of detention,a person can automatically stop using drug.
But it is only a physical stop. When theprisoner gets release and return to his own
society, he would deem to use drug again,
which would cause recidivism. The
Department of Corrections has altered themeans of treatment program from physicaltreatment to mental treatment. It has been
seven years that Therapeutic Community
or TC program has been applied astreatment of drug addicts in prisons.
In order to study TC theoretically andpractically, the Department has cooperated
with various agencies both in private andpublic sectors. Correctional officers andconcerned staff are trained to handle TC
program in prisons. At present, only 6
correctional institutions for drug addicts
have handled the TC program, but 70
prisons throughout the country have also
handled the TC program to their inmates.
Nowadays, the Thai government has put
high emphasis on drug treatment. The
target of treatment is not only at drug
offenders, but also at offenders committing

other type of crime that have drug-using
history. The Department of Corrections
has the project of construction of “DrugTreatment Center”. The center, which shallbe opened in late 2000, will serve as aminimum-security prison that provides TC
program and agricultural training program
to drug offenders and drug related
offenders.
C. Female Prisoners
During this last decade, number offemale prisoners has been increasing. In
1992, there were 4,030 female prisoners inprisons and correctional institutions of thewhole country, while in 1999, there were
19,235 female prisoners. Comparing tomale prisoners, the increase of female
prisoners is much higher. In 1999, the ratio
between male and female prisoners is 6 to
1. The tendency shows that if theincreasing of female prisoners continues inthis rate, the number of female prisoners
will be equal to male prisoners within thenext ten years.
The number of female prisoners might
have represented the equality of men andwomen in Thai society. The actual
situation indicates that crime involved not
only men but also women, especially drug
offense. According to the statistic, it isfound that, in 1999, among the total
number of convicted female prisoners,
13,314 or 69.22 percent has committed

TABLE 4
Type of Offense of Female Prisoners (as of 1999)
Type of Offense
Offense Against Property
Offense Against Drug and Inhalant Laws
Offense Against Life
Bodily Harm
Sex Offense
Offense Against Social Security
Others
Total

No.
4,604
13,314
308
120
77
10
802
19,235

%
23.93
69.22
1.60
0.62
0.40
0.05
4.17
100
373

RESOURCE MATERIAL SERIES No. 57
crime against drug laws; as shown in Table
4.
Looking backward into the last ten
years, it is found that the number of female

prisoners who have committed drug offense
has been doubled. In 1990, there were1,815 female drug offenders, which
represented 39.39% of the total number.
While in 1999, the number of female drug

TABLE 5
Number of Female Prisoners During the Last Ten Years
Year
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000

Female Prisoners
4,609
4,929
4,030
4,593
5,409
6,519
6,401
8,855
12,80819,23532,662

offenders has reached 13,314 prisoners or
69.33% of the total. The details are shownin Table 5.
It can be said that Thai women havecommitted more crime, especially crime
against drug and against property. As forserious crime such as offense against lifeand bodily harm, the number remains
unchanged. This has represented
participating roles of women in Thai
society, which have led to chances tocommit crime concerning property,
financial activities and illegal drugs.
V. CONCLUSION
As people commonly say, “If one wants
to know what the country is like, one shouldlook at the country’s prison”. The
administration of corrections in Thailand
has definitely reflected the country’s socialand economic problem. People have a fearof crime and wish that every wrongdoer be
kept away and expect that prisons should

374

Drug Offenders
1,815
1,960
2,130
2,765
3,230
4,167
4,629
6,857
10,046
13,314
17,346

%
39.39
39.76
52.85
60.20
59.71
63.92
72.32
77.44
78.43
69.22
53.11

rehabilitate every single criminal before
releasing him back into the society. All
criminal justice agencies are effected bythis public attitude and are trying theirbest to encounter the situation.
Corrections, which is the last agency incriminal justice system, has to be
responsible for the increasing number ofoffenders. Overcrowding, prison conditions
and rehabilitative treatment programs
have become heavy burdens forcorrectional officers. The solving of these
problems can not be done by the
Department of Corrections alone.
Governmental bodies including criminal
justice agencies shall have to reconsider
and cooperate in ameliorating the problem.

115TH INTERNATIONAL TRAINING COURSEREPORTSTHE
COURSEREPORTSOF
OF THECOURSEGROUP 1
PRACTICAL MEASURESTO ALLEVIATE THE PROBLEM OF OVERCROWDING
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Iftikhar Ahmad Rao
Mr. Zulkifli Bin Omar
Mr. Peterson Kamunyu Muhoro
Ms. Rebecca Ang Santamaria
Mr. Roy A. Murillo
Mr. Masamitsu Fujioka
Mr. Hiroshi Kubo
Mr. Naokuni Yano
Prof. Yuichiro Tachi
Prof. Hiroshi Iitsuka
Prof. Mikiko Kakihara

I. INTRODUCTION
The group was assigned to review,
analyze and discuss the problem ofovercrowding in correctional institutions
and to come up with suggestions on
considered remedial measures. We
analyzed the concept of ‘overcrowding’ andexplored issues related to it. Briefly thegroup outlined these issues as:- the official correction capacities
authorized by each country,- the available single cells verses
dormitories accommodation,- the periodical peaks and lows
experienced by correctional
institutions over a given period,- and the variations between one
prison and another caused by theapplication of allocation andclassification criteria.
Members of the group generally agreed
that overcrowding exists in correctional
institutions in many countries. They werealso of the view that overcrowding incorrectional institutions brings with it
management problems that make it
difficult to implement effective treatment
programs.

(Pakistan)(Malaysia)(Kenya)(Philippines)(Costa Rica)(Japan)(Japan)(Japan)(UNAFEI)(UNAFEI)(UNAFEI)

The group therefore adopted a three-tierapproach to deal with this topic thus;• To review the actual overcrowding
situation in each participant’s
country.
• To critically examine the possible
causes, and• To offer possible countermeasures
In discussing this topic, the members
agreed to extensively make use of :S
Individual Presentation Papers
already submitted during theplenaries.
S
Review existing materials andliterature relevant to this topic.
Consult the experience and opinionof the advisers that have been
attached to the group.
S
Lectures by the visiting experts andfaculty members.
Right from the start the group agreed toadopt a working definition of overcrowding
as a situation where the correctional
institution holds or accommodates
prisoners or offenders over and above thestatutory capacity or the conventionallyaccepted space per prisoner. Overcrowding

375

RESOURCE MATERIAL SERIES No. 57
may also be viewed from the perspective ofthe limitations it causes to effective
implementation of treatment programs.
The formula applied to calculate levelsof overcrowding is :Average Daily Population in Prison
proportional to the available capacity perhundred percent (ADP/CAPACITY (100 %)).
II. ACTUAL SITUATION OF
OVERCROWDING
A. Introduction
The participants in this group reported
varying levels of overcrowding incorrectional institutions in their respective
countries.

In brief, the level of overcrowding is as
here outlined. Japan has a population of
126 million. It is also recorded as having
the lowest number of prisoners per 100,000
population. The prison population iscurrently (-17.1%) below the available
capacity i.e. prisoners versus the available
space stands at 82.9%. On the other handin this group is a representative from
Kenya where there is 150.4% overcrowding,followed by Pakistan at 127.5%, Philippines
by 56.4%, Costa Rica at 20.4%, and Malaysia
4.8 %. The last two are noticeable for the
low levels recorded.
The following Tables reflect theovercrowding situation and the proportionof convicted and unconvicted prisoners.

TABLE ONEComparative Levels of Overcrowding in Prisons
Country

Population Prison Capacity Number of

No. of Prisoners/

In Millions

1000,000 Population Overcrowding

Prisoners

Percentage of

Costa Rica

3.6

4,296

5,173

143.7

20.4%

Japan

126.0

63.62552.71541.8(-17.1%)

Kenya

28.5

14,00035,058123.0

150.4%

Malaysia

23.0

23,88425,029

108.8

4.8%

Pakistan

126.81

34,70078,93862.2

127.5%

Philippines

68.6

45,00070,383

87.2

56.4%

Table two attempts to find out the statusof the prisoners held in custody incorrectional institutions i.e. convicted or
unconvicted. In all the countries, convictedprisoners account for more than 70% of thetotal prison population. For example Costa
Rica has 80%, Japan has 82%, Kenya has
74%, Malaysia has 71% and the Philippines
has 62%. The general trend therefore is
one where the overcrowding situation is asa result of holding more convicted offenders
376

relative to the available space. It is only inPakistan which has 22.4% of convicted
offenders.

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSETABLE TWO
Comparative Levels of Convicted and Unconvicted Prisoners Relative toOvercrowding
Country
Costa Rica

No.of
Prisoners
5,173

Japan

52,715

Kenya

35,058

Malaysia

25,029Pakistan

78,938

Philippines

70,383Convicted
Prisoners
4,906
(80%)
43,464(82%)
25,974(74%)
17,676(71%)
17,697(22.4%)
43,486(62%)

B. Actual Situation of Participants’
Countries
1. Costa Rica(i) During the last few years, Costa Rica
has shown a growth in the penal
population and this phenomenon has
caused a problem of overcrowding. It
has however been fairly alleviatedbecause several new prisons wereconstructed a few years back. In
1999, the average rate ofovercrowding was 20%, but in someinstitutions the percentage reached
80%.

Unconvicted
Prisoners
1,245
(20%)
9,251
(18%)
9,084
(26%)
7,353
(29%)
61,241(77.6%)
26,897(38%)

Percentage ofOvercrowding
20.4%(-17.1%)150.4%
4.8%
127.5%
56.4%(ii) Causes
Overcrowding in Costa Rica is causedby the tendency of long term
sentences, delays in trials, and theinappropriate use of non-custodial
measures.
a. Tendency of long term sentences
The average length of a sentenceof imprisonment has been
increasing yearly. In 1999, thepercentage of convicted prisoners
who have been sentenced forPopula- Penal Number Number of Number of Prison No. of Penal No. of Percentage
Population/ Capacity/ofYear tion In
ofConvicted Unconvicted Capacity 100,000
100,000
Population
Overcrowding
Prisoners Prisoners Prisoners
Millions
Population Population
1997
3.4327 5,747 4,922 4,420 1,327 3,029 167.4
88.24 62.5 %(70%) (30%)
1998
3.4964 6,187 5,026 4,929 1,258 3,899 177.0 111.51 28.90%(74%) (26%)
1999
3.5587 6,202 5,173 4,957 1,245 4,296 174.3 120.72 20.40%(75%) (25%)
Ref.: Statistic Department, Minister of Justice377

RESOURCE MATERIAL SERIES No. 57b.

c.

more than 16 years went up by
12%. During the same year,
imprisonment was used in morethan 90% of the cases. This wasprobably because of the public
and pressure for more and morepunishment. The legal reform of
1998, maximum statutory lengthof penalty was extended from 25
to 50 years and this has
contributed to increasing the
average length of sentence.
Delay in Trial
Currently the average period of
trial from prosecution until
sentencing is about seventeen
months. This is due to theshortage of public prosecutors
and judges.
Inappropriate Use of Open Penal
Centers and Conditional Release.
In the last three years, thepercentage of prisoners in closed
centers is more than 85%. This
figure seems to indicate thatYear

there is excessive utilization ofclosed imprisonment by the
penitentiary system.
2. Japan(i) In 1999, there were 67 prisons and 7
detention houses (excluding thejuvenile classification homes and thejuvenile training schools.). The
percentage of accommodation rate in1998 was 82.9 percent. Correctional
institutions as a whole in Japan are
not overcrowded.
The acknowledged number of offences
has increased consistently for the last ten
years. The accommodation rate of penal
institutions has been rising every year andsome penal institutions like female prisonsor prisons for those convicts who do nothave advanced criminal tendency havebeen experiencing problems ofovercrowding. This is a trend that raises
some concern to the administration of penal
institutions and is to be watched in future.

1996

Population
In Millions
125.86

Number of
Offences
1,812,119

Number of
Prisoners
49,4141997

126.17

1,899,564

50,897

1998

126.492,033,546

52,715

Year

Prison Capacity

Number of
Number ofConvicted Prisoners Unconvicted Prisoners
40,5158,899(81.99%)(18.01%)
41,8689,029(82.26%)(17.74%)
43,4649,251(82.45%)(17.55%)

No. of Prisoners/ No. of Capacity/
100,000 Population 100,000 Population
1996
64,770
39.3
51.5
1997
64,404
40.3
51.0
1998
63,625
41.7
50.3
Ref: White Paper on Crime 1997 - 1999

378

Percentage ofOvercrowding-23.7%-21.0%-17.1%

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(ii) Reasons for No Overcrowding inJapan
Generally, overcrowding may becaused by delay in investigations,
inadequate use of non-custodial
measures and others, but Japan does
not have these problems.
a. Strict Observation of Law
The Code of Criminal Procedurerequires police and publicprosecutors to handle one casewithin the confinement period of
23 days or less at theinvestigation stage. This
restriction of period is observed
strictly by them. Also at the trial
period, cases requiring long trial
periods have been limited to only
brutal or complicated cases. The
ratio of cases whose trial periods
were within three months
exceeded 70 % in the courts offirst instance in 1998. The ratioof cases that took more than one
year in the trial period was only
1.7 %. These figures have notchanged much in recent years.
b. Adequate Use of BailJapan has a bail system after the
initiation of prosecution. The
number of defendants who werereleased on bail in the courts offirst instance was about 16 % in
1998. Though at first sight thisfigure seems to be low, this isbecause the number of bailrequests was not so high.
Realistically more than half thenumber of the requests for bailwere accepted by the judge before
the first trial date.
c. Effective Use of Non-custodial
measures
As for the non-custodial
measures, there are suchmeasures as disposition of petty
offences at the police stage,suspension of prosecution at

public prosecutors stage, andsuspension of execution ofsentence at trial stage. Thesesystems are being utilizedaccordingly. For instance, therate of suspension of prosecutionof criminal code offence was 34.9
% in 1998. The rate of suspensionof execution of sentence was 63%
for imprisonment with labor and95.8 percent for imprisonment
without labor. The ratio of thenumber of newly admitted
prisoners per the total number ofoffenders (penal code offenders
and special law offenders)received by public prosecutors
offices was only 2.06% in 1998.
These figures show that manycases are diverted at each stage.
d. Effective Use of Parole
Moreover, at the stage of theexecution of punishment, releaseon parole is effectively used. The
rate of release on parole was 58.2
percent in 1998.
(iii) As mentioned above, the number ofcrimes and the accommodation rate
has been increasing in the last few
years. We can analyze that one of thereasons for the recent increase of theaccommodation rate in Japan is theincrease in the number of crimes/
prisoners. And the reasons of therecent overcrowding situation in thefemale or non-advanced criminal
tendency prisoners’ prison resultsfrom the lack of facilities which canaccommodate them, while thenumber of such kinds of prisoners
keeps on increasing and theclassification is strictly done.
3. Kenya(i) Overcrowding in prison penal
institutions in Kenya has
consistently been a problem. The
magnitude of this problem however

379

RESOURCE MATERIAL SERIES No. 57
varies from one penal institution toanother. Example: the medium
sentence prisons are relatively more
overcrowded than others while
prisons based in major towns
experience more overcrowding
relative to those in district rural
areas.
As at the week of 18 February 2000,
Year

Population
In Millions

Number of
Prisoners

1999

28.50

35,058the average daily prison population
was as shown in the following table.
Compared with late 1970’s and early
1980’s the prison population has
rapidly risen from 24,239 to 35,058.
The overcrowding has been very
rapid and steep more than doublingup (from 73% to 150.4%) between
1979 and 1999.

Number of Number of
Prison No. of Prisoners/ No. of Capacity/ Percentage ofConvicted Unconvicted Capacity
100,000
100,000
Overcrowding
Prisoners Prisoners
Population
Population
25,9749,084
14,000123.0
49.1
150.4%(74.09%) (25.91%)

Ref: Prison Annual Report(ii) Causes of Overcrowding in Kenya
The main causes of prison
overcrowding in Kenya are thefollowing:a. Inadequate Finances
Prisons like all other government
public institutions are fundedfrom public finances. Like allother public institutions they
have to make a strong case tojustify their demand for funds
and in this they compete withothers for the available national
funds. This is in spite of the factthat their function and roles aremandatory. With a declining
national economy, funds madeavailable to prisons haveproportionally been declining at
a time when the prison
population has actually been
increasing. The inadequate
finances lead to cut backs on mostprison activities. At best, mostof the prison programs operate at
half or less of their capacity
performance levels. This has leadto correctional staff focusing
more on secure custody at the

380

b.

expense of corrections andrehabilitation and thus placing
constraints on the essential early
release measures of remission
and good conduct sentence
reduction measures. As a result,the length of prison sentenceserved by inmates is in mostcases as per the courts
originating orders.
Lack of Early Release Measures
The “end line” early releasemeasures that have beeneffectively utilized elsewhere arelacking or under utilized. The
parole program especially iscompetently capable of down
loading prison population by athird or more. It is however
unavailable and therefore there
is no opportunity to utilize thisearly release program. Thismeans that the length ofsentences served in Kenya isrelatively greater.
Prisoners end up staying longer
in correctional institutions forperiods unrelated to training
needs. As mentioned earlier
remissions, general pardon and115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

c.

other early release measures areapplied ad-hoc and therefore only
marginally impact on prisons
overcrowding.
Inadequate Use of Alternatives
The magistrates/courts whichhave the first jurisdiction andprocess over 80 % of the criminal
proceedings annually sparingly
apply non-custodial
countermeasures. Ordinarily,
the proportion of imprisonment
compared with probation orders,
community service orders andother supervisory orders are low.
The mindset in sentencing is toconsider imprisonment as thesentence of first choice. This
inevitably creates a very fastbuild up of prison population.
This has been the trend in thelast ten years. The occasional
mass state pardons do not seemto have had a lasting impact
because barely six months after,
the same levels are reached. As
such there is presently no cut-off
on prison overcrowding in Kenya.
4. Malaysia(i). The actual situation of overcrowdingin Malaysia fluctuates and the trend
shows that the prison population
declined from 29,150 in 1998 to
25,019 in 1999. The percentage ofprison overcrowding decreased from32 % to 4.75 %. The main reason forthis decline is that in 1998 many
foreign prisoners were deported totheir own countries and the practicewill continue in future.
As of 2 March 2000 there was amarginal increase of the penal
population from 25,019 to 25,029 andthe percentage of overcrowding rosefrom 4.75% to 4.8%.

Year

No. of Percentage
Population Penal Number Number of Number of Prison No. of
PopulationofConvicted Unconvicted Capacity Prisoners/ Capacity/ofIn
Prisoners Prisoners Prisoners
100,000 100,000 Overcrowding
Millions
Population Population
31-Dec 22.20 29,150 25,427 22,666 6,484 22,085 131.3 99.48 32.0%-98(89.14) (10.86)
31-Dec 22.80 25,019 21,966 19,649 5,370 23,884 109.7 104.75 4.75%-99(89.45) (10.55)
2-Mar 23.00 25,029 22,176 17,676 7,353 23,884 108.8 103.84 4.79%-00(79.71) (20.29)
Ref: Malaysia Prison Department(ii) Causesa. Lack of Alternative Measures
The main reason of overcrowdingin Malaysia is the lack ofalternative measures toimprisonment. This is because thepublic has a very strong influencein favor of imprisonment
particularly for heinous crimes.
b. Increase in Number of Crimes
The increase in the number ofcrimes committed especially

under the Dangerous Drug Act
and the Immigration Act
aggravate the overcrowding rate.
Malaysia is the place of transit
for drug smugglers. The steadyflow of foreign workers also
contributes to the prison
population. The foreign prisoners
charged under the Immigration
Act in 1998 were 5,051 prisoners
and as of 2 March 2000 thenumber of foreign prisoners was

381

RESOURCE MATERIAL SERIES No. 57

c.

5,068.
Slow and Inefficient
Administration in the Criminal
Justice System
The shortage of judges andmagistrates and also theincreasing workload causes delay
in trials and makes the period ofremands longer. The increase of
awaiting trial prisoners in
Malaysia also creates
overcrowding.

5. Pakistan(i) There are vastly diverse ways tomeasure overcrowding. Here thesimplest method is used and involves
comparing the state set capacity ofprisons and the actual number ofprison inmates on a given day. If thelatter exceeds the former (more than100%), one could conclude that theprison system is generally
overcrowded. Pakistan with apopulation of 120 million has 76
prisons with a capacity of 34,700
inmates. Against this capacity
81,904, 73,884 and 78,938 prisoners
Year

Population
In Millions

Number of
Prisoners

1997

120.0081,904

1998

123.3673,8841999

126.81

78,938

were housed during 1997, 1998 and1999 showing an overcrowding of
136%, 112%, and 127% respectively
whereas the imprisonment rate per
100,000 population was 68.2, 61.5
and 65.7 in the same order during theabove period. The table below
presents occupancy rates for the last
three years ie 1997, 1998 and 1999.
The highest rate of overcrowding has
been in the year 1997, which shows
136% overcrowding.
The careful perusal of the tableindicates a fluctuating prison
population during these three years
hence, no special trend setting
inference can be drawn. During the70s the position was not grave, butwith rapid changing socio-economic
conditions, process of globalization
exposure of youngsters to world
media and increases in population
has resulted in the growth of theprison population. In addition to theabove there are a number of othercauses of over crowding, which are
discussed hereinafter.

Number of Number of
Prison No. of Prisoners/ No. of Capacity/
Convicted Unconvicted Capacity
100,000
100,000
Prisoners Prisoners
Population
Population
50,318 31,586 34,700
68.3
28.9
(61.44%) (38.56%)
15,777 58,107 34,700
59.9
28.1
(21.35%) (78.65%)
17,697 61,241 34,700
62.2
27.4
(22.42%) (77.58%)

Percentage ofOvercrowding
136.0%
112.9%
127.5%

Ref: Home Department Government of Punjab, NWFP, Sindh, Baluchistan,(ii) Causes of Overcrowding in Pakistan
a. Delay in Judicial Disposition ofcases
Overcrowding of unconvictedprisoners is a common problem
in many countries, however inthe present group, Pakistan is382

the only country where thisproblem is more pronounced.
The number of unconvictedprisoners have shown a sharp
upward trend during the last
three years which not onlyreflects a very low conviction

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
percentage, but also indicatesslow judicial disposition of cases.
The reasons are shortages ofjudges, magistrates, police,prosecuting officers and above all
insufficient court officials who
are over worked. The otherreasons are postponement ofcases, witnesses not available
due to all sorts of reasons,lawyers engaged in other courts,
incomplete investigations, police
officers (due to other multifarious
duties) are either not available or
not well prepared to face thecourt and counsel for the accused.
The influence of corruption andinsufficiency are also considered
contributing factors in thisregard. Although unconvictedprisoners are eligible to obtainrelease on bail, inadequate use of
bail provisions result in increases
in remand population.

c.

d.
b.

Lack or Limited Use of
Alternative Measures to
Imprisonment
This is one of the major
contributory factors towards anincrease in the prison population.
Although we have fines andsuspension of sentence asalternative measures toimprisonment, these are not veryfrequently used particularly inheinous crimes. In fact public
perception about the punishment
is tilted more towards
imprisonment than alternative
measures. That is one of thereasons that the courts havesparingly used alternatives.
Cases have also come to thenotice where a number of finedefaulters are serving prison
sentences because of inability topay.

Lack or Limited Use of Early
Release Measures and After Care
Services
Although we have sufficient early
release measures like remission,
pardons, parole, treatment
program within prisons and aftercare services, they are far below
optimum level. As a result therate of recidivism is increasing.
In fact prisons are considered as
nurseries for the training of firsttimer offenders to turn them into
hardened criminals. On the other
hand, one school of thought is of
the view that the lack or nonavailability of facilities within
prisons or bad prison conditions
act as deterrents and results in a
reduction of recidivism. But infact it is the other way round anda very negligible proportion of theprison population fall under thiscategory.
Lack of Resources
Financial constraints lead to
deficient space and facilities forthe prisoners ultimately leading
to overcrowding. In Punjab,
which is one of the biggest
provinces of Pakistan only 10
new jails have been constructed
after independence, where as the
population has increased tenfold.
Hence, due to the non-availabilityof space for the penal population
the overcrowding is not only
increasing rather it has alreadyreached an alarming stage.

6. The Philippines(i) G e n e r a l l y, t h e c o r r e c t i o n a linstitutions in the Philippines
operating under three distinct andseparate departments (theDepartment of Justice, theDepartment of Interior and Local
Government and the Department of383

RESOURCE MATERIAL SERIES No. 57
Social Welfare and Development) areexperiencing overcrowding problems
in their respective correctional
facilities. It is pointed out that thecapacity of its facilities is not enoughto accommodate the increasing
number of offenders.
The estimated population of thePhilippines in 1999 was 80.7 million.
It recorded an average increase of 6%
per year. In 1999, the recorded
number of the penal population was
70,383 or its equivalent to 87.2
prisoners per 100,000 population. It
has an average yearly increase of
9.6%. In 1997, the ratio between theadult and youth population was
86.5% and 13.5% respectively; in
1998, it increased to 91% and 9%; andin 1999 registered a slight decrease
to 86.5% and 13.5%. In three years
time, the average ratio between theadult and juvenile offenders was 88%
Year

1997
1998
1999
Year

Population
No. of
In Millions Prisoners
72.60
76.60
80.70

58,55264,66870,383and 12% respectively.
The measurement of capacity in thecorrectional facilities varies from thekind of treatment andaccommodation afforded to them by
the three distinct departments. For
DSWD, the quarters of youth
offenders are of dormitory typewherein each offender is provided
with two square meters bed space
and another two square meters open
space for easy mobility. In 1999, theovercrowding situation in thefacilities for youth offenders went up
to 21.8%. On the other hand, theBureau of Corrections under the
Department of Justice providing
custodial care to convicted national
prisoners (3 years above sentence)
reported that the average living spacefor each offender is 1.82 square
meters. The overcrowding is howevercompensated by wide-open spaces for

Prison No. of Prisoners/ No. of Capacity/ Percentage of
Capacity
100,000
100,000
Overcrowding
Population
Population
43,000
80.7
59.2
36.2%
45,000
84.4
58.7
43.7%
45,000
87.2
55.8
56.4%

Type of
Penal
No. of Convicted No. of Unconvicted
Offenders Population
Prisoners
Prisoners
50,55825,79524,873
Adults(51.02%)(48.98%)
1997
7,994
0
7,994
Juveniles(100%)
58,89337,482
21,411
Adults(63.64%)(36.36%)
1998
5,775
0
5,775
Juveniles(100%)
61,85743,486
18,371
Adults(70.30%)(29.70%)
1999
8,526
0
8,526
Juveniles(100%)
Ref: Bureau of Corrections, DSWD Annual Report384

PrisonCapacity
36,000Percentage ofOvercrowding
40.4%

7,000

14.2%

38,000

55.0%

7,000

-17.5%

38,000

62.8%

7,000

21.8%

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
playgrounds inside the prison
compounds. The state of overcrowding
is even more serious in district,municipal, city and provincial jails
managed by the Department ofInterior and Local Government.
(ii) Causes of Overcrowding in thePhilippines
a.Slow Administration in the
Criminal Justice Process
The table attached herewith
shows that the average
percentage between theunconvicted and convictedprisoners is 45.3% and 54.7%.
The slow administration in thecriminal justice process is pointed
out as one of the leading causesof the overcrowding problem
prevailing in most correctional
facilities. The trial proceduresare delayed such that thedetention of the offendersometimes exceeds the maximum
period of penalty for the offense
charged.
b. The Economic Crisis
The economic turmoil
experienced by the country is one
important aspect that
contributes to the increase incriminality. The unemployment
and the underemployment rate of
the country as of January 2000
were 30.5% as against the entire
working population. This may
explain why crimes against
property was so high in the
country for many years now(50.6% in adult population and
49.4% in youth population). This
number further accounts for theconsiderable number of detainees
who cannot afford to post bail andtherefore stay longer in detention
cells. The budgetary constraints
faced by the government also

hindered the construction ofcorrectional facilities.
III. INFLUENCE OF
OVERCROWDING
A. Introduction
As we have seen above, many countries
are facing the problem of overcrowding.
This is the root cause of many problems
experienced in correctional institutions
such as deterioration of the living andworking conditions of both inmates andcorrection staff.
B. Influence of Overcrowding on the
Prison Administration.
1. Staff
In overcrowded prisons, staff are overworked, their works become morerisky, the quality of work goes down
and their effectiveness to implement
programs designed to rehabilitate
offenders is reduced. Furthermore, itcauses health problems to staff
because they are exposed tounhealthy surroundings. They arealso affected psychologically andemotionally.
2. Staff - Staff Relations
In overcrowded situations, staff-staff
relationships are also strained, andstaff efficiency goes down because thesenior officers are over loaded withwork while sorting out staff disputes
instead of concentrating on
correctional training assignments
and responsibilities.
3. Staff - Inmate Relations
In overcrowded prisons, security
risks increase because the breach of
prison rules and regulations is high,gangs are organized and thepossibility of prison riots increases.
The unfair distribution of favors andcorruption creeps in. The chances of385

RESOURCE MATERIAL SERIES No. 57
contracting diseases are more in suchsituations.
C. Slows Down the Correctional
Programs.
Classification/segregation of cases
according to behavior, age, etc. will bedifficult. Every prisoner may not get theopportunity to avail the correctional
programs i.e. waiting list increases. As aresult, the recidivism rate climbs because
not all are put through the correctional
system.
On the other hand, management are
most likely to experience difficulties inplanning, coordinating, implementing,monitoring and evaluating activities of theinmates. Classification will be difficult.
D. May Lead to Violation of Human
Rights and Dignities.
The United Nations Minimum Standard
Rules describes a model system of penal
institutions. To practice human rights anddignities in the penal institutions, it isimportant to apply the standard of theserules as much as possible. When
overcrowding occurs in penal institutions,the application of these rules, especiallyconcerning clothing and bedding, food,hygiene, medical services becomes very
difficult to implement.
E. Causes Stress and Tension among
Inmates.
Stress and tensions among inmatescreate an increase in the number ofdisciplinary cases and will develop
disruptive behaviors, which may cause
psychological and physiological effects.
IV. CAUSES OF OVERCROWDING
A. Introduction
It is often stated that prison
overcrowding is a problem in many
countries. This leads to a deterioration of
the living and working conditions of both386

inmates and correction officers. There areseveral explanations of overcrowding.
Although imprisonment is a minor elementof the conventional punishment system, thecorrectional authorities cannot control theflow into prisons.
Furthermore increase in population,changing economic conditions all over theworld, globalization factors and exposureof particularly the young generation toelectronic media has also resulted in an
increase in the number of crimes andcriminality which has ultimately resulted
in overcrowding of the penal population.
On the other hand, police andprosecutors in some jurisdictions are often
given great discretion in the number ofcases to be processed. Thus, the agencies
administrating punishment, be it
imprisonment or otherwise may suffer fromheavy overcrowding and increasing work
load over which they have no control.
In the following paragraphs the causes
which are more critical and are applicable
to almost all the countries in general arebeing discussed in relation to these organsof the criminal justice system.
B. Causes of Overcrowding at the
Police/Prosecutor Stage
1. Delay in Investigation andSubmission of Indictment
Delay in investigation of cases in which
the accused is detained will result inovercrowding of detention houses andprisons. In many countries either theprovisions for investigation without
detention are limited or are not usedeffectively and efficiently, thus resulting in
more unconvicted prisoners. Similarly thedelay in submission of indictment will slow
down the process of criminal justice and islikely to result in an increase in the numberof unconvicted/under trial prisoners.

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
2. Non Availability of Provision in
the Law for:(i) Disposal of Cases by the Police(ii) Suspension of Prosecution
In many countries provisions do not exist
where cases of petty theft, petty fraud, etc
can be disposed of by the police. In fact
non disposal of petty cases at the initialstages not only results in overloading thecriminal justice system with unnecessary
work but also results in increasing thenumber of unconvicted prisoners.
Similarly on the prosecution side many
countries have provisions in the law for theprosecutor to suspend or close theinvestigation when certain criteria are
fulfilled and in some cases purely on
discretion, but these provisions are notbeing applied efficiently. This may resultin increases in the number of unconvictedprisoners or detainees.
C. Causes of Overcrowding at the
Judiciary Stage
1. Slow and Inefficient Administrationin the Criminal Justice Process.
It is clear that delay in the criminal
justice process will increase thenumber of remand prisoners andcause overcrowding. Slow andinefficient administration in thecriminal justice process is a major
cause to overcrowding at the judiciarystage.
In every country, judges/courts aretrying to realize speedy trials.
Realistically, however they cannot
accomplish this goal because ofincreasing numbers of cases,
inadequate cooperation of parties
involved or witnesses. Incomplete
investigation, neglect of preparation
for trial, difficulties in designating
continuous trial date and shortage ofjudges, public prosecutors, lawyers,
court clerks and interpreters also
impede on speedy trial.
Additionally, though the authority ofinvestigation belongs to the policeand prosecutors, it is one of the duties
of a judge/magistrate to observe thatthe investigation is carried out. In
some countries, observation of
investigation by judges (magistrates)
is imperfect and causes the extensionof detention period.
2. I n a d e q u a t e U s e o r L a c k o fAlternative Measures.
Lack of alternative measures toimprisonment is considered a major
factor in causing prison overcrowding
situations in many countries. The
tendency in these countries is one
where imprisonment is utilized by
the courts as first option before
considering other non-custodial
measures. It was observed that inthese countries, many alternative
measures do indeed exist. It washowever noted that their use orapplication was minimal and they
therefore do not affect the levels of
numbers sentenced to imprisonment.
The preference for the over use of
imprisonment was discussed and itcame out that generally it isinfluenced by the already establishedsentencing practice, prevailing
feeling and attitude of people at agiven time on issues of crime and insome instances the judicial traditionand precedents that have been set
and followed in the past. It is
however the case that lack ofalternative measures and inadequate
use of the available countermeasures
have a great influence on levels ofprison overcrowding. Any effort torelieve this problem must therefore
be directed to this cause ofovercrowding.
In some countries the average termof sentence is comparatively long.
This can also be one reason of
overcrowding.

387

RESOURCE MATERIAL SERIES No. 57
3. Inadequate Use of Bail.
All the countries discussed have abail system. In many of them, there
are many defendants waiting fortrial, even though their offences may
be bailable. It is no doubt that thissituation deteriorates toovercrowding. This is because
defendants cannot pay bailbond dueto their poor financial situation or
they are not offered the opportunity.
D. Causes of Overcrowding at theCorrection/Rehabilitation Stage
1. Inadequate Use and Lack of Early
Release Measures
Prolonged incarceration has beenused as a traditional way ofpunishment. Studies however showthat prolonged incarceration has
brought about negative effects on thewell being of offenders. Henceforth,early release measures have been put
in place as alternative measures toimprisonment like probation, parole,
remission, week-end detention andothers. These are made available toattain the objectives of correction/
rehabilitation and to solve
management problems brought about
by congestion in penal institutions.
As a result of group discussions, it
was found out that although early
release measures have been madeavailable in all participant countries,
they are not fully maximized andutilized. Some do not have otherearly release measures as have beenpracticed by other countries. For
example, Malaysia and Kenya do nothave the parole system to provide an
opportunity to the qualified offender
to continue serving his sentence inthe community which is less costly on
the part of the government andprovides ample opportunity to an
offender to start a new life.
Early release measures have the388

advantage of lessening the lengththat the prisoners spend incorrectional institutions. Where
early release are also granted but
subject to good conduct they operate
as subtle inducements for behavior incorrectional set-ups which is anecessary pre-requisite to effective
training, care and control. The
overall effect however is to reduce thenumber of prisoners and thus reduce
prison population levels.
2. Capacity
It is observed that penal capacity inmany countries has remained thesame without taking into
consideration the numbers of thosesentenced to prison terms every year.
This capacity in most cases is often
below the prison’s population level.
It is felt that if capacity was utilized
as an indicator of ideal prison levels
at any given time, overcrowding
would be avoided as resources
required could be made available toaccommodate the increased numbers.
Low capacity means that the
distribution of prisoners toappropriate correctional institutions
is not properly done according to therisk and needs assessment criteria.
It also means that space andresources are constrained.
Transportation of convicted prisoners
from one prison to another or
unconvicted prisoners from remand
homes to the courts are a major
occupation for correctional staff. It isconsidered that prison capacities
could be regularly adjusted
commensurate with the country’s
population.
3. L a c k o f E f f e c t i v e Tr e a t m e n t
Programs and After Care Services
It has been observed that thetreatment programs at the correction/

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
rehabilitation stage are notsystematic, complete or suitable tofulfill the individual needs ofprisoners. The lack of effective
treatment may be due to inadequate
classification of the prisoners,
mismatched allocation of prisoners
into the appropriate prisons anddistribution of inmates into thewrong training schedules. This
problem is made worse where thecorrectional staff do not have up todate knowledge, skills andmotivation to carry out their duties.
This trend has a tendency of releasing
prisoners back into the community
who are not properly rehabilitated.
T h e c o m m u n i t y ’s t e n d e n c y i s
predictably to harbor and harden
negative feelings of ex-prisoners. It
is considered that the creation of
appropriate community awarenesson treatment programs will be usefulto create positive public attitudes tocorrections. It is in this connectionthat after care services arerecommended in early releasecountermeasure.
V. COUNTERMEASURES FOROVERCROWDING
A. Introduction
Arising from group discussions, it isevident that many countries areexperiencing overcrowding in prisons. Thishas been brought out through thedescriptions and graphic data submitted inthis paper. It has also come out that thecauses of overcrowding are clear whenanalyzed against the background of
criminal justice practiced by each
respective country.
It is, however, difficult to prescribe
possible countermeasures due to thefollowing:- The penal philosophy, ideology andpolicy guiding correctional practicevary from one country to another.
There is no uniformity in theapplication of aims of sentencing, thatis, whether it is outright retribution/
incapacitation, deterrence, or
correction/rehabilitation.
The correctional policy is therefore foundto be influenced by :- Social/cultural experience of thepeople, economic development level ofthe country, and the expectation of thepeople on what constitutes fair justice.
The impact of countermeasures will also
be influenced by the public perception of
public security, law and order, and how it
is executed by the various agencies ofcriminal justice. An informed public
opinion would appreciate efforts aimed at
decongesting prisons. Public opinion is
likely to influence the extent to which noncustodial measures are viewed and, byextension, accepted by the community.
B. Countermeasures at Police/
Prosecutor Stage
Because the stage of police andprosecutors is aimed at investigation andprosecution, countermeasures towards
overcrowding are comparatively limited. As
a whole, for prisoners to get alternatives
to imprisonment, investigation andprosecution must be done as quickly as
possible.
These countermeasures are as here
under:
1. Minimum Detention
Using the investigation withminimum detention of suspects by
reducing unnecessary delays. For
example, a suspect involved in minor
offences may not be arrested/detained. The countries that do nothave this provision may consider thisoption as it works successfully.
Furthermore where the suspect isinvolved in a crime which is
cognisable and bailable, the option of
releasing him on affordable surety

389

RESOURCE MATERIAL SERIES No. 57
bond may be considered, after giving
due weight to circumstances of thecase.
2. Disposal of Cases at the Police andProsecutors Stage
Disposal of cases at the police andprosecutors stage shall be improved
to reduce prison population. This canbe discussed under the following
headings:- Disposition of Petty Offences- Suspension of Prosecution(i)

Disposition of Petty Offences at
the Police Stage.
In some countries the suspects/
offenders involved in minor
offences like traffic violations,petty theft, petty fraud and petty
gambling could be subjected to asimplified procedure ofterminating their cases. This canwork as a countermeasure at theinitial stage of the criminal
justice system.
(ii) Suspension of Prosecution
This is being practiced very
successfully in many countries.
In this process the prosecutor isempowered by the law to suspend
prosecution before trial and in a
few countries like Pakistan andIndia etc after commencement of
trial. We feel that in countries
where this provision does notexist, they may consider suchprovisions in their law.
To achieve benefits from theabove two provisions, theconfidence of people in theprosecution and police is aprerequisite. Furthermore theprocess is required to betransparent and officials are
required to be accountable for
their deeds.

390

C. Countermeasures at the Judicial
Stage
1. Speedy and Efficient Criminal
Procedure(i) Observation of Investigation
When a judge/magistrate views
a warrant request, they have toconsider whether it is necessary
to arrest/detain the suspect or notby considering the merits of thecase or the circumstance of thesuspect. A judge/magistrate also
has to observe strictly the time
limitation imposed oninvestigating agencies. Proper
observance of time limitations
will reduce the number of
unconvicted prisoners.
(ii) Introduction of Arraignment
Procedure, and Summary Order
Procedure.
In order to reduce the number oftrials, some countries haveintroduced criminal procedures
through which cases are disposedof without opening trials. These
procedures contribute to reducethe detention period of
unconvicted prisoners.
a) Arraignment Procedure is afaster process. For example
in Costa Rica, Malaysia,
Kenya, Philippines, thedefendant and the publicprosecutor could get into amutually acceptablearrangement: the defendant
accepts the penal
responsibility and the publicprosecutor often offers him/
her a discount in the penalty.
Then the court approves theagreement and does not open
trial.
b) Summary Procedure is also
useful for speedy criminal
procedure. This is the special
procedure that imposes a

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
certain amount of fine on the
defendant without the normal
trial. The request ofprosecutors and theagreement of the suspect are
required before applying thisprocedure. This procedure isutilized to deal with minor
cases well and about 90
percent or more of all cases
indicted are disposed ofthrough this procedure in
Japan every year.
(iii) Limitation of Detention Period at
Trial Stage
Some countries do not havespecific time limits of detention
periods after prosecution. There
were some defendants who had
stayed in jail waiting for trial for
longer periods than the length of
final punishment. For thiscountermeasure, the law shouldorder a specific time limit for thedetention period at the trial stage
as well as at the investigation
stage. For example in the case of
Costa Rica, this measure isapplied and has a limit of time
12 months. If the sentence is inappeal, the measure is extended
by six months more. If this period
expires and the individual does
not have the definite sentence,the detention is discontinued.
(iv) Speedy Trial
The judicial goal is to achieve
speedy trial. To realize this,judges should hold pre-trial
conferences with publicprosecutors and defense counsels
to identify the main issues of thecase. Judges should also
determine the length of trial andmake arrangements with bothparties about the schedule oftrial. To designate plural trial
dates will contribute to speedy
trial.
Needless to say, speedy trials
cannot be realized without thecooperation of public prosecutors
and defense counsels.
2. Effective Use of Alternative Measures
to Custodial Sentences(i) Fines
Fines are utilized in all countriesof our group and contribute to
reduce the number of convictedprisoners. In some developing
countries where the economic
conditions are poor, there aremany prisoners who are sent tojail because they cannot afford to
pay the fines. To prevent this, a
day fine system or paying the fineby installment is recommended
as a solution.
(ii) S u s p e n s i o n o f S e n t e n c e /Suspension of Execution of
Sentence
Suspension of sentence/suspension of execution ofsentence frees the defendantfrom punishment. Many
countries have this kind ofsystem. These systems aremainly utilized for first time
offenders who commit minor
offences. In some countries
suspension is sometimes
accompanied by a probation
order. As mentioned before, inJapan execution of sentence issuspended in more than 60
percent of all trial cases and it
contributes to reduce the numberof convicted prisoners.
(iii) A Drug Court
The rapid increase of drug
addicts causes overcrowding too.
Drug Court is a new alternative
measure incorporated in

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RESOURCE MATERIAL SERIES No. 57
countries like Australia and theUnited States. In Australia they
have a program for the offences
granted to drug addicts, as
alternative to imprisonment andthe judge refers to a specificprogram of treatment andsupervision. If the individual
fulfills this measure, he/she does
not have to go to jail (the sentence
is suspended).
(iv) Others
There are some other noncustodial measures as follows:- House Arrest: the offendermust remain within theconfines of the home during
specified times and adhere toa strict curfew.
- Binding Over: the court orders
the offender to make acontract with a fixed amountof money which will be
forfeited on him/her in casehe/she does not appear for the
court appointment.
- Community Service Order:
the court orders the offenderto perform unpaid labor likecleaning public parks, schools,
and hospitals for a specified
number of hours in a
determined time period.
- Weekend Detentions: thecourt orders the offender tostay in jail only on weekends.
- Recognizance: this is analternative measure for thedetention of youth offenders in
the Philippines. Offenders on
trial can be released back into
the community with theprotection and guidance ofqualified parents, relatives or
responsible persons in thecommunity on condition ofgood conduct but under thesupervision of a social worker.

392

3. Reduce Sentence Length
In some countries, reduction of thesentence length is one way to
alleviate overcrowding. But thesentencing practice has taken rootsin the judicial system of many
countries and therefore it is very
difficult to change the average lengthof sentence. So, to change thesentencing practice, it is necessary to
win the understanding of the public.
Costa Rica has a unique system
where the judges have the powers torelease juvenile convicts before expiryof their sentence (which can be called
as one of the early release measures)
after obtaining reports fromconcerned agencies on behavior andother factors of the convict.
4. Appropriate Use of BailAfter considering the contents ofoffences, the possibility of destroying
evidence or threatening witnesses,
judges/court could grant bail if theoffence is bailable.
In some countries, there are many
defendants who cannot be released onbail, because the amounts of bail bondare so high, even though theiroffences may be bailable. But the
purpose of bail bonds is to make thedefendant attend trial. In this sense,
the amount of bail bonds should beaffordable to each defendant andsufficient to ensure his/her presence
for trial.
As mentioned before, lack of
information for defendants causes
insufficient use of bail. It is necessary
to enhance the defense activities in
the pre-trial process.
D. Countermeasures at theCorrection/Rehabilitation Stage
1. Early Release Measures(i) Parole
Parole is a conditional release of

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
prisoners after serving certain
periods of the determined
sentence. Eligibility is howeverconditional on other factors e.g.
whether one is a first time
offender, a recidivist offender ora risky offender. Modalities forconsideration of parole aspracticed in Japan is as follows:- Pre-parole investigation
reports prepared by parole/
probation officer are
submitted to the Parole
Board.
- Prisons Superintendent sends
application of all suitableprisoners to the Parole Board.
- Contact interviews with aprisoner by the Parole Board.
- Decision to grant parole or not
is decided by the Parole
Board.
- If the decision is positive theprisoner is granted parole forthe remaining period of theprison sentence subject tosupervision in the community
by a probation/ parole officer.
This countermeasure can beextensively utilized. For
example, in Japan the number ofparoles were given to 12,948
prisoners (58.2%) in 1998.
Revocation cases amounted to
992 or 7.6% for the same period.
- The advantage for thiscountermeasure is that the
Parole Board does not change
the length of original sentence
given by the court.
- The parolee gets guidance andassistance/support after
release from prison and someget residence and daily living
allowances from half-way
houses run and managed by
the non-profit privateorganization.

-

The parolee is expected toobserve some laid down
conditions as part of his
contract to keep within thelaw.
Parole is a demanding programand creates a lot of overload while
processing applications anddeciding on each case. It
therefore requires personnel,
finances and a lot of time to makeit work. It is however, a good
program because it isaccountable and encourages
prisoners to live normally in thecommunity.
(ii) Remission
Remission is the reduction of theperiod to be served by a prisoner. This
period is pre-determined e.g. in
Malaysia 1/3; Philippines 1/3, Kenya
1/3 and Pakistan 1/3 remission period
is provided for by the law. The periodof remission may vary from one
country to another but generally is a
program practiced in many countries.
Remission is provided for in the law
except in capital punishment or
where otherwise stated. Remission
can be forfeited in cases of grossmisconduct by the prisoner as laid out
in the prison rules. Remission isadministered by the prison
authorities and therefore is not
expensive to manage.
It has been found that remission
reduces prison custody by up to athird of the length of the sentence. It
is a useful program in reducing
overcrowding because it is less costly,easy to administer and decisionmaking is done by the prison
administration. It encourages good
discipline in the prison setup. In the
short term, remission is an effective
countermeasure to overcrowding. In
the long run, it may create recidivism
because there is no follow up or any

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RESOURCE MATERIAL SERIES No. 57
supervision.
(iii) Pardons
These are ad hoc decisions to relieve
prison pressure by releasing
prisoners before their sentence iscompleted. Such cases are released
during national day celebrations oron any other such like occasions.
They are effective in reducing prison
populations for a time but they are
not sustainable. The released
prisoners are not subject tosupervision and therefore they raise
concern for the public. More often,
the impact of these general pardons
is temporary to the prisons’overcrowding situation. It was notedthat pardons are practiced in thePhilippines, Malaysia, Kenya,
Pakistan, Costa Rica, Japan andmany other countries. They do servea purpose however short lived.
The above countermeasures are
considered significant because of
their ability to deal with the sizeable
number of prisoners if properly
managed. These programs arepractical and easy to manage andfunding requirements arecomparatively low. Finally, it ispossible to monitor and evaluate theimpact of these programs to prison
overcrowding situation on an on
going basis.
2. Enhanced Resource Allocation
The local and national government
should increase the operational
budget of correctional institutions sothat effective treatment programs
can be implemented. Construction,
expansion and renovation of facilities
are needed to accommodate theincreasing rate of penal populations
and keep pace with the changing
situations such as the properclassification and allocation of
offenders (young and adult, convicted394

and unconvicted).
3. I m p r o v e E f f e c t i v e Tr e a t m e n t
Programs and After Care Services
Improve staff competency levels that
implement treatment programs
utilizing case management strategy.
This is a collaborative and multidisciplinary process that includes
assessment, planning,
implementation, coordination,
monitoring and evaluation of options
and services needs by the offenders.
This may include the assessment of
the offenders’ risk, the recognition ofneeds, the monitoring of theiractivities and if deemed appropriate,a correctional intervention. Further,counseling integrated with cognitive
skills training which touch on topics
relative to control of misbehavior isalso proven as an effective measure.
Open penal systems that utilize theconcept of conditional release likeparole, probation, suspension ofsentence, week-end detention etc. isa good strategy to give pre-releaseprisoners a chance to prove his worth
again to be reintegrated back tosociety. This minimizes the stigma
attached to an offender as prisoner,
enhances role performance andregains self-esteem. This system is
effective, easy to manage and reduces
overcrowding situations incorrectional facilities.
The enhancement of after careservices should be given full attention
by the government as one importantmeasure to reduce the recidivism
rate. Networking with nongovernment organizations, civic
bodies and religious groups is alsoneeded to augment the limited
budget of the government and tostrengthen the after care services in
the community.

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
E. Other Countermeasures
It was felt that in addition to the above
countermeasures there is a need to ensure
effective coordination amongst the organsof the criminal justice system coupled withdecriminalization of behaviors that do notpose a threat or risk to public security. It isalso realized that agencies of the criminal
justice system need to be made more
efficient and compatible with the changing
times by providing them with sufficient
staff, adequate funds and computerizationof records. An efficient criminal justicesystem can reduce the number of prisoners
substantially thus relieving the pressure
on prisons.
VI. CONCLUSION
In conclusion, it was felt that weakeconomies, high unemployment rates, lowliteracy percentage, high population
growth, unfair application of laws,
globalization factor and exposure ofparticularly young generations toelectronic media has resulted in an
increase in the number of crimes andcriminality which has ultimately resulted
in an increase in the number of unconvicted
and convicted prisoners. This phenomenon
has posed very serious problems for thecriminal justice system and especially thecorrection administration. The countries
that had never experienced the problem ofovercrowding are also threatened becauseof this phenomenon.

custodial measures and abundant use ofearly release measures. However it wasobserved that before introducing new
countermeasures it would be appropriate
to properly evaluate the same to ensure its
success and effectiveness.
It was also felt that governments do not
assign appropriate priority to the prison
administration at the time of allocation offunds for creating more capacity and to
improve/update correctional facilities.
Last, but not the least it was realizedthat the option of imprisonment as apunishment is being used more often than
not in most of the countries, which is oneof the major causes of overcrowding.
However it was felt that in spite of theabove, it is possible to formulate
countermeasures that are viable,
implementable and practicable which cansolve the problems of overcrowding
substantially.

In addition to the actual situation andcauses of overcrowding in eachparticipant’s country, the causes andcountermeasures at each stage of thecriminal justice system, that is, police,prosecution, judiciary and correction werealso discussed in detail. It was felt that toalleviate the problems of overcrowding in
the penal institutions there is a need tohave an efficient criminal justice system
to ensure speedy trials, wider use of non-

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GROUP 2
PRACTICAL MEASURES TO IMPROVE PRISON CONDITIONS
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Sikeli Dau Tamani
Mr. J. B. Negi
Mr. Babu Ram Regmi
Ms. Noriko Ota
Mr. Marwan Adli
Mr. Yosia Baba
Mr. Akira Yokoi
Prof. Chikara Satou
Prof. Shinya Watanabe

I. INTRODUCTION
Reviewing current issues in correctional
treatment in the world, one of the
problems is the improvement of prison
conditions. The issue of prison conditions
is very important because it relates to thehuman rights of prisoners in correctional
institutions.
On this point, the Standard Minimum
Rules for the Treatment of Prisoners(herein after referred to as “SMRs”)
adopted by the First United Nations
Congress on the Prevention of Crime andthe Treatment of Offenders, defines thestandard of institutional treatment(including prison conditions) in detail andhas served as the basic guidelines thatmust be satisfied by each country.
However, many countries are confronted
with problems which hinder the fulfillmentof this standard.
Given these circumstances, Group 2 firsttakes a general review of the international
instruments regarding prison conditions,and how domestic legislation is describedbased on the SMRs and what the actual
situation of prison conditions is in theparticipating countries of our group,particularly on accommodation, hygiene
and medical services, clothing and bedding,and food.

396(Fiji)(India)(Nepal)(Japan)(Indonesia)(Japan)(Japan)(UNAFEI)(UNAFEI)

Then, Group 2 also analyzes the maincauses which impede the implementationof the SMRs and its influences on prisoners.
Finally, some measures to improve prison
conditions are examined from both alegislative and practical point of view.
II. STANDARDS AND NORMSREGARDING PRISON CONDITIONSThe SMRs is well-known as theinternational standard regarding thetreatment of prisoners including prison
conditions. In this section, our group firsts
takes a general view of human rights inprison and then describes the historicalbackground and legal nature of the SMRs
and discusses the interpretation of“Standard Minimum” in the SMRs and its
adaptation to practice.
A. Human Rights in Prison
Human rights are the basic rights ofhuman beings and no person should be
deprived of such rights. The protection ofhuman rights is guaranteed by some
important international instruments andshould not regress. This fundamental
principle is also applied to prisoners incustody in correctional facilities and should
be respected fully as long as it does notharm the purposes of their incarceration.
Making an effort to attain this goal is115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
expected to lead to the improvement ofprison conditions.
In this connection, some basic principles
regarding the treatment of prisoners
including prison conditions are mentioned
in the international instruments. For
example, the important provisions relating
to prison conditions can be found in theInternational Covenant on Civil andPolitical Rights as follows:
Article 7
Article 7 prescribes the prohibition of
torture or cruel, inhuman or degrading
treatment or punishment, stating “ No one
shall be subjected to torture or to cruel,inhuman or degrading treatment or
punishment. In particular, no men shallbe subjected without his free consent tomedical or scientific experimentation.”
Article10, Paragraph 1
Article10, Paragraph 1 prescribes thetreatment of all persons deprived of theirliberty, stating “All persons deprived of
their liberty shall be treated with humanity
and with respect for the inherent dignityof the human person.”B. Standard Minimum Rules for theTreatment of Prisoners
1. Historical Background
The SMRs was adopted at the first
United Nations Congress on the Preventionof Crime and Treatment of Offenders, heldin Geneva in 1955. On 31 July, 1957, theEconomic and Social Council of the United
Nations adopted these rules.
2. Legal Nature
The SMRs is not a treaty and is notlegally binding. Taking account of legal,social, economic and geographicalconditions, the SMRs has the meaning of
the international standard that eachgovernment should give favorable

consideration to adopting and applying itin the administration of their penal
institutions.
3. Interpretation of “Standard
Minimum” of the SMRs and its
Adaptation to Practice
It is quite a basic question as to at whichlevel “Standard Minimum” of the SMRs
should be located. On this point, The SMRs
does not describe it explicitly, with Rule 2
only stating that “.......the minimum
conditions which are accepted as suitableby the United Nations” and it seems todepend on the interpretation of theprovision. In connection with an aspectthat the public is very sensitive to at whichlevel prison conditions are, this issue isconsidered worth discussion. Thus, Group
2 discussed the interpretation of “Standard
Minimum” of the SMRs and its Adaptation
to the Practice in Respective Countries.
In terms of the interpretation of“Standard Minimum” of the SMRs, there
are two opinions presented in our Group;(i) it is considered “the level of minimum”
to the letter to be observed by each country
in consideration of the International
Covenant on Civil and Political Rights, and(ii) it is deemed to signify the living
standards of the outside people inrespective countries. However, in the latter
perspective, it is quite difficult to satisfy
such a “Standard Minimum” in mostcountries, especially taking into
consideration the different level of
economic situation or other. Therefore, ourGroup considers the “Standard Minimum”
as a relative standard, while indicating theminimum conditions to be observed byrespective countries so that inmates may
be treated as human beings, and is theguidance for realizing the betterment ofprison conditions in its adaptation,according to the circumstances inrespective countries.

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RESOURCE MATERIAL SERIES No. 57
III. DOMESTIC LEGISLATIONREGARDING PRISON CONDITIONS
AND ACTUAL SITUATION OF
PRISON CONDITIONS IN THE
PARTICIPATING COUNTRIESGroup 2 focused on the four areas; 1)
accommodation, 2) hygiene and medical
services, 3) clothing and bedding and 4)
food, which are considered importantfactors of prison conditions. Here, the legal
provisions and the actual situation
regarding the above mentioned areas in our
respective countries are discussed.
A. Accommodation
1. SignificanceAccommodation is a basic factor for
inmates to spend their prison lives and its
equipments should satisfy the conditions
necessary for maintaining their health inprisons. Proper equipments are also
expected to contribute to the bettermentof hygiene. The SMRs stipulate theaccommodation of prisons in Rules 9 to 14
in the following items:(a) T y p e s a n d c o n d i t i o n s o f
accommodation;(b) Standard of sleeping arrangements;(c) Lighting and ventilation;(d) Sanitary facilities;(e) Bathing and shower installations;and(f) Maintenance.
In addition to Rules 9 to 14, Rule 8 also
stipulates the separation of different
categorized inmates, which is indirectly
related to accommodation.
2. Domestic Legislation and Actual
Situationa) Fiji
In Fiji, there are two types ofaccommodation; cell type and dormitory
type. In case of cell type regulations, aprisoner shall not be housed in a cell withless than 60 square feet of floor space and398

only one prisoner shall be accommodated
in one cell. But at times when there is asituation of overcrowding, three prisoners
can be accommodated in one cell.
On the other hand, in case of dormitory
type regulations, each prisoner confined ina dormitory shall be allocated at least 40
square feet of floor space. Usually 22 to 24
prisoners are accommodated in adormitory. Both cells and dormitories are
sufficiently provided with lightning andventilation. In case of dormitories, bathing
and toilet areas are located within thebuildings. Sanitation allocated within
accommodation buildings is well cleaned
and maintained. However, most prisonsthat were built during the colonial era are
not provided with sufficient sanitation andare still using sanitary buckets.
b) India
In India, accommodation in a prison
consists of cellular and association wards.
A cell is intended for a single prisoner andan association ward for more than one
prisoner. Rule 701 of the Assam Prison
Manual lays down that every prisoner inan association ward shall be allowed notless than 36 square feet of ground spaceand 540 cubic feet breathing space, thatthe height of the walls of a ward shall not
be less than 13 feet and that in calculating
the allowance of cubic feet per person no
account shall be taken of any air space
above 13 feet.
Near the door of every ward shall berecorded the number of cubic andsuperficial feet which it contains and thenumber of prisoners which it is capable ofaccommodating. On the basis of themanual, the lock up register shall show the
maximum accommodation of every ward,
so that the Superintendent may be able tojudge at a glance whether any ward is overcrowded or not. Also he/she shall pay
special attention to the ventilation of the

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
sleeping wards. In all cases, care shall betaken that there is sufficient lateral, as wellas roof ventilation. The interior ofworksheds, sleeping wards and cells shallordinarily be white washed twice a year,
and in hospitals once in every threemonths.
c) Indonesia
In Indonesia, there are two types ofaccommodation; single cell and dormitory.
The latter is designed to accommodate 3,5, 7, or 9 prisoners.
Both types of accommodation areprovided with facilities like: mattresses,
pillows, toilets and bathing, ventilation andlight. Both single cells and dormitories areavailable for prisoners and detainees aswell and almost 80 percent of the prisoners
or detainees are accommodated indormitories. The placement of prisoners isdetermined according to the classificationof prisoners and security, such as maximum security, medium security andminimum security.
d) Japan
In Japan, there are two types ofaccommodation; single cell and dormitory.
Both types of accommodation are
sufficiently provided with a window, anelectric light, and a flush toilet.
Unconvicted inmates are put into single
cells in principle. Each correctional
institution accommodates inmates
separately according to sex, age and thenumber of previous offenses.
e) NepalIn Nepal, as most of the prisons werebuilt long ago, they are lacking the basic
facilities. The prisons were also consideredas punitive centres and not as correctional
centres at the time of their construction.
Therefore, the functional structure andequipment in most of the prisons is veryp o o r. N o n e w p r i s o n s h a v e b e e nconstructed so far, but the government isplanning to construct new prison buildings.
Although the prisons in Nepal are divided
into four categories, they are not classified
according to the type of detention or levelof security but capacity alone. There are
no separate facilities for detainees andsentenced offenders, although the Prisons
Act stipulates keeping detainees andsentenced offenders separately as far as
possible. Similarly, there are no special
women’s prisons (female inmates areaccommodated in separated wings of thesame buildings of the male inmates). In
Nepal dormitories are provided for
prisoners. No size of the prison is
mentioned in law. The size differs fromprison to prison and there is no uniformity.
A case of one prisoner accommodated in asingle cell is often the exception rather thana general rule and the standard of one
prisoner per a single cell is utilized in thecase of solitary confinement.
f) Findings of Discussion
In Fiji, India and Nepal, on the basis of
the domestic laws, civil prisoners are kept
separately from prisoners. However, inIndia and Nepal, due to overcrowding andthe lack of space, all prisoners are actually
kept together in many prisons, except thatfemale prisoners are kept in separate
blocks. In Japan and Indonesia, there isno concept of civil prisoners and otherwise
the domestic law and practice comply withthe other provisions of Rule 8 of the SMRs.
Nevertheless the domestic legislation
regarding accommodation in theparticipating countries is a bit different, thesubstantial matters mentioned in Rules 9
to 14 of the SMRs are almost stipulated bythem, except that Japan and Indonesia
have no domestic legislation in compliancewith Rule 14. In general, the actual
situation concerning the requirement of theseparation of convicted and unconvictedprisoners is not satisfied and it isrecognized in some participating countries.

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RESOURCE MATERIAL SERIES No. 57
B. Hygiene and Medical Services
1. Significance
Maintaining hygiene and providing
necessary medical services are of vital
importance on the ground that correctional
institutions accommodates a large numberof inmates and manages them. Badhygiene risks spreading diseases rapidly
among inmates, and insufficient medicalcare damages their health conditions andsometimes may lead to their deaths. Thus,
good hygiene and medical care are thefundamental prerequisite to be addressedby prison authorities in order that inmates
send their sound lives in prisons. In thisconnection, the SMRs have provisions
regarding personal hygiene as follows:
Rule 15
Prisoners shall be required to keep theirpersons clean, and to this end they shall be
provided with water and with such toilet
articles as are necessary for health andcleanliness.
Rule 16
In order that prisoners may maintain agood appearance compatible with their selfrespect, facilities shall be provided for theproper care of the hair and beard, and men
shall be enabled to shave regularly.
Here, our group also discussed thematter of medical services stipulated by
Rules 22 to 26 on the ground that hygiene
and medical care are very closely related
to each other.
2. Domestic Legislation and Actual
Situationa) Fiji
In Fiji, the visiting medical officers(VMO) to prison are provided by thegovernment and they visit the prisons oncea week to make medical checks of newly
admitted prisoners, pre-release prisoners
and prisoners complaining about sickness
and those necessary to be diagnosed on the400

request of prison officers. Prisoners withserious and complicated disease are sent
to hospital for diagnosis. The VMO is also
to visit a prison at least once a month toinspect every part of the prison and shall
pay special attention to its sanitary state,
the health of the prisoners, and theadequacy and of the diet.
Recently, due to the threat of incurable
diseases like HIV/AIDS, thorough medical
examinations are conducted for all newly
admitted prisoners and their specimens aresent to hospital for further assessment andconformation of results. Prisoners areencouraged to keep themselves clean anddecent and are provided with basic
necessities like bathing soap, towels, tooth
paste and brushes, toilet tissues andshaving gear for daily use. All convictedprisoners are to shave daily and cut their
hair short. Civil and unconvicted prisoners
are not compelled to shave and have their
hair cut short unless the VMO certifies it
to be necessary.
b) India
In India, the Superintendent, medical
officer and all other subordinate officers are
responsible for any hygiene matters. Rule707 of the Assam Prison Manual lays downthat attention shall be paid not only to themore important subject of the disposal ofnight soil and refuse but also to every detailconnected with the cleanliness andneatness of the prison and its
surroundings. The jail area shall becleaned daily and be kept free from all
jungle matter and weeds, accumulation of
broken manufacturing refuse etc. No
cooking room refuse shall be permitted tobe thrown on the ground, nor shall rubbishof any kind be allowed to accumulate near
the jail.
The drainage of the ground round about
the jail shall be carefully attended to andwhere necessary drainage cuts shall be

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
made with a view to preventing thea c c u m u l a t i o n o f w a t e r.
The
Superintendent and medical officer are
responsible that an ample supply of waterof good quality is always available fordrinking, bathing and other purposes. The
sources from which drinking water isderived shall be carefully selected andprotected from pollution. Samples of water
should be sent to the laboratory forchemical examination twice a year and also
when in the event of an outbreak of
epidemic disease, there is a reason for abelief that it might be due to contaminationof the water supply. Every possible
precaution shall be taken to prevent
pollution of the water supply either at thesource or at the storage. Every officer ofthe prison shall exercise utmost vigilancein maintaining hygiene and sanitation.
Section 37 of the Prison Act of 1894
requires that the name of sick prisoners
shall be reported without delay to the jailer
or medical officer. Under section 39 of the
Prison Act a hospital shall be provided inevery prison. Rule 650 of the Assam Prison
Manual lays down that every prisoner
complaining of illness be sent for
immediate medical examination by adoctor. A lady doctor may be called in toattend female prisoners when necessary.
Every prisoner suffering from any active
disease shall be brought under medical
treatment and his name shall be recordedin the appropriate register. The medical
officer shall daily inspect the out patientregister and order the admission to hospitalof any out patient if necessary. At least
once a week, the medical officer shall
examine all out patients. The medical
officer shall also visit daily all prisoners in
hospital and under observation and decide
whether any prisoner shall be admitted
into or discharged from hospital.

c) Indonesia
In Indonesia, prisoners are required tomaintain a short haircut and be shaved
cleanly at all times in order to maintain agood state of personal hygiene. Items suchas nail cutters, mirrors for shaving areprovided by the prison authority and areavailable on a communal basis. Inmates
are also provided with soap every two
weeks from the prison.
In terms of medical care, medical
treatment is provided inside a prison or
detention house. However, as facilities are
not adequate, an inmate may be sent to a
hospital outside the prison under escort byprison officers. Doctors from local
government and the Red Cross institutions
examine inmates for HIV/AIDS once a year.
d) Japan
In Japan, an inmate can take a bath andshave twice a week (three times in thesummer). The bathing time is 15 minutes
on average (20 minutes on average forwomen). There is no restriction on hairstyles of unconvicted inmates. However,convicted inmates are required to have agiven hair-style in view of keeping better
hygiene or safety.
Doctors and other medical staff shall beassigned in every correctional institution.
The ratio of doctor against inmates is about
1 to 150, which seems to be higher thanthat of the general Japanese population.
There are the medical prisons and if
necessary, sick inmates may be transferredto them. Also if a special medical care oroperation is needed, inmates may betransferred to a hospital outside theinstitution at national expense. Medical
checkups are firstly conducted at the timeof admission and done regularly once per
6 months afterwards.

401

RESOURCE MATERIAL SERIES No. 57e) NepalIn Nepal, there is legislation regarding
the hygiene and medical services to beprovided to prisoners. In general, allprisoners are urged to keep their personal
and living environment clean. Medical
treatment of ill prisoners is to be done by
the government doctors serving in prisons.
Depending upon the number of prisoners,
there is the regular doctor’s service only insome prisons. Otherwise, the visit of thedoctors is made as per the necessity or on
the request of the prison. If an inmate isseriously ill and a government doctor
diagnoses that he/she should be admitted
to a hospital for better treatment, he/sheshould be hospitalized and treated in a
hospital. In terms of the matters regarding
the personal hygiene of inmates, prison
officers shall be responsible formaintaining its good state in compliancewith the law.
f) Findings of Discussion
The matters relating to personal hygiene
are well stipulated in the legislation of therespective participating countries, but ina different way. In the legislation such as
in Indonesia, it is just mentioned to provide
prisoners with soap, while in Nepal thelegislation is silent as to what kind ofarticles should be provided to prisoners but
simply states that the conditions of
personal hygiene among prisoners should
be kept properly as the duty of prison staff.
As far as medical services are concerned,
not all of the matters as stipulated in the
SMRs are covered by the legislation of theparticipating countries. Also the different
degree of the provisions is recognized. For
example, the services of a qualified dental
officer as stipulated in sub-rule (3) of Rule
22 of the SMRs is not mentioned in any
legislation of the participating countries
except Japan. Similarly, the matterstipulated in Rule 26 of the SMRs is not
mentioned in details in any domestic

402

legislation of the participating countries
but India. It is the actual situation that
medical services provided to inmates do notalways satisfy the provisions of thelegislation.
C. Clothing and Bedding
1. Significance
Clothing and bedding are necessary
requirements for daily life. Providing cleanand sufficient clothing and bedding toinmates is essential for maintaining
humanitarian prison conditions and also
ensures good hygiene by preventing the
spread of contagious diseases in a prison.
The SMRs prescribe the matter of clothing
and bedding in Rule 17 through to19.
These Rules include the following items:(a) Adequate clothing;(b) Cleanliness of clothing;(c) C l o t h i n g i n e x c e p t i o n a lcircumstances;(d) Cleanliness of their allowed own
clothing; and(e) Separate bed and sufficient bedding.
2. Domestic Legislation and Actual
Situationa) Fiji
In Fiji, on the basis of the regulations,prisoners are provided with three pairs of
uniform and may be allowed to wear
personal clothing on occasions, such asattending court, being transferred by public
transport, attending outside church
services and burial for close family
members. They are also supplied withbedding, such as beds, mattresses, pillows,
mosquito nets and two blankets.
b) India
In India, the existing scale of clothing
and bedding for all the convicted prisoners
is prescribed in the Assam Prison Manualrule 393 in detail. The prison clothes
supplied to an inmate under trial shall bewithdrawn and taken back at the time ofhis discharge or release on bail. The above-

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
mentioned scale of clothing and bedding
shall also be admissible to non-criminal
mentally disordered people who are notprovided with sufficient clothing andbedding from a private source.

their relatives or friends, or to purchasethem at their own expense. In cases where
unconvicted prisoners stay in prison for
more than one year they are also entitledto get dresses.

c) Indonesia
In Indonesia, according to theregulations, the basic necessities areprovided by the prison authority. Prisoners
are provided with two sets of blue uniforms
and are allowed to receive shirt and pantsfrom their family. All prisoners are also
allowed to wear their own clothing for all
authorized purposes, such as visiting
prison mosques, churches, attending thefunerals of family members, attending
medical treatment in public hospitals,
family visiting program. If they are notable to afford to have personal clothing,
they are supplied with civil type clothingby the prison authority.

f) Findings of Discussion
There is domestic legislation in each of
the participating countries corresponding
to the provisions of Rules 17 to 19 of the
SMRs. Especially, the legislation in India
as well as in Indonesia is fully compliant
with the provisions stipulated in those
Rules. In Japan, all the things requiredby the SMRs are not stipulated in thedomestic regulation. In Fiji, except subrule (2) of Rule 17 and the matter relating
to climate, all requirements are stipulated
in the domestic legislation. In Nepal,
except for the matters of Rule 19, allrequirements are mentioned in thedomestic legislation. In general, as far as
clothing and bedding, the domestic
legislation in each participating country iswell provided and put into practice inconformity with its provisions.

d) Japan
In Japan, on the basis of the Prison Law,clothing and bedding are provided forconvicted prisoners by correctional
institutions. Those for unconvicted
detainees are self-supplied in principle.
However, those who are unable to affordthem may be supplied with such items by
the institutions. Different types of clothing
are supplied according to the seasonalchanges of climate. If any circumstances(e.g., in case of sick, aged and foreign
inmates) require special consideration,
additional supplies, such as clothing forcold weather or other materials areavailable.
e) NepalIn Nepal, all convicted prisoners areprovided with dresses two times a year.
Mats, blankets, bed sheets and pillows areprovided to both convicted and unconvictedprisoners upon their admission.
Unconvicted prisoners are allowed toreceive approved items of clothing from

D. Food
1. SignificanceProviding food of nutritional value
adequate for maintaining inmates’ healthand physical strength is of vital importancein correctional institutions. Keeping wellbalanced calories in food is also required
to prevent adult diseases such as diabetes.
In this connection, the SMRs have thefollowing provision regarding food as
follows:
Rule 20(1) Every prisoner shall be provided by
the administration at the usual hours
with food of nutritional value
adequate for health and strength, ofwholesome quality and well preparedand served.
(2) Drinking water shall be available toevery prisoner whenever he needs it.

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RESOURCE MATERIAL SERIES No. 57
2. Domestic Legislation and Actual
Situationa) Fiji
In Fiji, on the basis of the regulation,
there are three dietary scales provided tothe prisoners, which are prescribed in theFirst Schedule commonly known as dietaryscale of A, B and C. Prisoners may selectany of these dietary scales on admission.
On the other hand, there is no any
legislation regarding the amount of calories
which is required. However, there is theprovision regulating that the food supplied
shall be wholesome in quality and with all
the ingredients prescribed in the First
Schedule.
b) India
In India, Rule 368 of the Assam Prison
Manual lays down that it is the
responsibility of the Superintendent to seethat the prisoners entrusted to his custody
are fed properly so that their health is not
impaired and their weight is maintained.
The food should contain an adequate
quantity of each of the essential elements
for maintaining proper nutritional statusof the individual. The degree of physicalactivity is the most important factor that
determines the calories of food required.
Calorie value required: An average man
who is engaged in any hand manual labor
will require 2000 to 2400 calories. A person
who is to do heavy work would require notless than 2800 calories. An average woman
would require about 2400 calories. A
pregnant woman or a nursing mothershould have additional calories. Every
prisoner shall be entitled to receive dietsat the prescribe scale for the class to which
he belongs. The diet scales are categorized
into A, B and C division of prisoners.
Special diets shall be given to eachprisoner on the occasion of Republic Day,
Independence Day, Gandhi jayanti and
Magh bihu, in addition to the diet404

ordinarily admissible.
c) Indonesia
In Indonesia, on the basis of theregulation, food is served three times a day,and food calories for inmates are uniformly
determined at 2,250. Foreign prisoners
who cannot eat Indonesian food due tosome reasons (religious or cultural reason)
are given special meals. Even in such acase, both quality and quantity are thesame as the food for national prisoners.
Special diets are available for sickprisoners subject to the recommendation
or approval of medical officers (doctors).
During the religious month, including hariraya and Christmas day, prisoners areallowed to receive food from their home or
religious organizations to celebrate theseoccasions.
d) Japan
In Japan, according to the regulation,
food is supplied for inmates three times perday. Food is required to maintain enoughcalories with reference to theirconstitutions, health conditions, age, andkinds of work assigned. The nutritional
values of food vary from 2300 kcal (kilocalorie) to 3000 kcal per day. Special diets
are available for foreign prisoners whose
customs and religious restrictions aredifferent from those of the Japanese, in
addition to sick inmates due to medical
reasons.
e) NepalIn Nepal, the legislation clearlystipulates that food be provided to theprisoners. Prisoners are divided into two
categories; “Category A” and “B”. Daily
necessary commodities are supplied basedon the Category of prisoners or detainees
placed. Those placed in “Category A” areentitled to obtain a quantum of 700 gramsof rice and 20 rupees a day, while those in“Category B” obtain 700 grams of rice and
15 rupees a day. In case when a female

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
inmate gives birth to a baby in a prison,some additional commodities are provided
to her.
f) Findings of Discussion
The domestic legislation regarding foodin each of the participating countries is incompliance with Rule 20 of the SMRs,
although they are stated in a different way
slightly. That is to say, the legislation has
provisions regarding the quantity of thecommodities in detail, whereas otherlegislation includes clear clauses of thenutritional value adequate for health andstrength. For example, in India, the foodis subject to different categories ofprisoners and this is mentioned in a formof clarifying the calories per the kinds ofitems in detail. In Japan the legislation
clearly states how many times the food is
supplied and calories according to the work
assigned to the prisoners, which seems to
be more detailed than Rule 20 of the SMRs.
In general, as far as food is concerned, thedomestic legislation in each of theparticipating countries is well provided andput into practice in conformity with theprovision.
Through the discussions, our group is of
the same opinion that enjoying sufficientliving space, clothing and bedding, hygiene
and medical care, and food is thefundamental necessity for human beings.
Such a principle is applied to even inmatesin custody in correctional facilities andshould be respected fully as long as it does
not harm the original purpose of theirincarceration.
IV. MAIN CAUSES FOR IMPEDING
IMPROVEMENT OF PRISONCONDITIONS, AND ITS INFLUENCEON PRISONERSOur group first reviewed both theStandards and Norms regarding prison
conditions and then, especially on the basisof the provisions of the SMRs examined
how the domestic legislation is stipulated
in each of the participating countries andwhat the actual situation was in practicein prisons. As a result, it is found that theactual practice does not always comply
with the standards stipulated in the SMRs.
Therefore, it is necessary to find out theexisting problems in prisons and to
examine the main causes for impeding theimprovement of prison conditions and its
influence on prisoners. This group first
discussed the causes for impeding theimprovement of prison conditions and tried
to relate each problem with the respective
causes. The main causes for impeding theimprovement of prison conditions are foundas follows:
1. Insufficient Budget
Our group reaches the consensus thatthe insufficient budget is the main cause
for impeding the improvement of prison
conditions. This cause may differ fromcountry to country and may exist even in
the developed countries. But this isconsidered as the main cause in most of
the developing countries. The government
has other priority sectors such as poverty
alleviation, health, education, drinking
water and so on. As the budget is very
limited and many sectors need to be
improved, there is no sufficient budget
allocated for the improvement of the prison
conditions. The national budget of many
developing countries depends not only oninternal resources but also on foreign
resources. Therefore, the priority sectors
are sometimes determined by the external
factors as well. Similarly, the priority
sector, in most of the developing countries,
is determined, depending on the returns
to the government by the particular sector
concerned and as the prison sector does notmake any substantial returns to thegovernment, the government does notallocate sufficient budget to it. In many
countries the prison buildings were built

405

RESOURCE MATERIAL SERIES No. 57
many years back and lack minimum
facilities, but constructing new prison
buildings costs a lot and most developing
countries can not afford this because of theinsufficient financial resources.
On the other hand, the budget allocatedto the prisons is not properly distributed
among the prison institutions and thereby
the conditions of the prisons such asaccommodation, clothing and bedding,food, and personal hygiene etc. differ fromprison to prison. Due to insufficientbudgets there is the lack of equipment, lackof medical care and insufficient
implementation of rehabilitation
programs. If the above mentioned
problems are in a prison, there is a bad
influence on the inmates housed in such
prisons and it causes the dissatisfaction of
the prisoners which leads to disobedientattitudes of the inmates and sometimes it
even leads to hunger strike and to riots inprisons.
2. Lack of Understanding by
Government
This is also considered as a cause for
impeding the improvement of prison
conditions. It is one cause which differsfrom country to country depending upon
the political system of a particular country.
If the political system is democratic, thenthe government is more likely to listen to
the voices of the human right activists andgive due priority to the improvement ofprison conditions. Especially, in a
democratic system of government if thegovernment does not have proper
understanding about the prison conditions
and people are not made to understandabout the human rights situation in a
prison as well as prison standards, thenthe people may pressure for thedevelopment of sectors other than theprison, which ultimately hinders the
improvement of prison conditions. In somecountries depending upon the election

406

system, the politicians are interested inonly securing their votes and therefore they
pay more attention to own constituencies.
Then, prison is not a priority for such
politicians. This can also be taken for thelack of understanding by the government
as the same politicians are there in thegovernment.
Regardless of the political system, there
are cases where the government officials
working in prison do not recognize theminimum standard of prisons which should
be maintained and they do not report tothe higher authority accordingly and thehigher authorities do not have sufficientknowledge about prison conditions andthese institutions are neglected, similarly
due to the lack of understanding by thegovernment about the prison conditions,low priority is given to the prison
institutions within the ministry concerned
and thereby the prison conditions are not
improved. As a result, there are different
levels of prison conditions, lack ofequipment, lack of medical care and so on,when such problems are in a prison there
is a negative influence on the prisoners andthey gradually show their dissatisfaction
and it leads to disobedient attitude andfinally may lead to hunger strike and riots.
In such a situation there is no expectationof proper rehabilitation and making a good
citizen in a prison.
3. Overcrowding
Overcrowding is one of the main
obstacles and causes of the impediment for
the improvement of prison conditions. It
hinders the realization of the goals of theprison administration. The annual budget
for a particular prison is fixed at the
beginning of the fiscal year bearing in mind
the actual number of the prisoners or the
maximum capacity of that prison and the
manpower is determined beforehand. But
the overcrowding starts somewhereanytime of the year but after the budget

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
has been fixed. Due to the limitation of
manpower, material resources andtechnical equipment, prison
administrations have to be emerged incoping with daily affairs and correctional
programs cannot be effectively carried out.
Overcrowding also impedes the proper
implementation of the classification ofprisoners. Increasing prison populationand limited prison facilities cause different
categories of prisoners to be kept mixed.
For that reason, in some countries
convicted and unconvicted prisoners arealso kept together, as a result different
kinds of offenders share their crime
experiences with each other and cause
contamination, overcrowding weakens
prison security. Consequently, it makessome inmates’ temper worse and some
inmates may behave abnormally and evenprovoke dispute. These matters may
escalate violence among the prisoners.
Because of overcrowding, there is apossibility of spreading diseases, such as
HIV/AIDS, tuberculosis, hepatitis andother epidemics which may take place andultimately may cause the death of inmates.
4. Insufficient Disclosure ofInformation to the Public
In a democratic society, public opinion
plays a vital role. The general public are
the source of power, therefore, nothing canbe done against the people’s will. The
government is formed by the people andthe policies formulated should reflect the
public will otherwise the policies cannot be
successfully implemented. The
participants reach consensus in generalthat one of the causes of impediment in the
improvement of prison conditions is thelack of disclosure of information to the
public. Firstly, some prison officers
themselves are reluctant to provide
information about the actual situation of
the prison to the mass media and to the
public. Secondly, the mass media does not

publish the real situation of prisons anddistorted information is reaching the
public. Therefore, the media makes
unnecessary exaggeration of the fact,
especially the negative incidents in prisons
are highlighted and the public cannot havereal information about the prison
conditions and they think that they havenothing to do with prison.
One of the important facts is that the
public in general should be made awarethat prisoners are also human beings andthey need to be treated as human beings.
This is lacked even in the developed
countries and the public is often critical ofcorrectional institutions and say that too
many facilities are provided for prisoners.
However, the reality is different because
no countries have provided too many
facilities for prisoners. It depends on thelevel of overall development of a particularcountry. When the public in general are
not informed correctly and they are criticalof the management of prison, it definitely
impedes the improvement of prison
conditions.
5. Lack of Cooperation from Outside
Our group, in discussing this point,
basically observed two views: first cooperation from the private sector, nongovernmental organizations (NGOs) andother volunteer organizations and second- from outside the prisons but within thegovernment institutions. The private
sector is reluctant to invest in the operationof factories in prisons which makes it
difficult to provide jobs to the inmates who
are willing to work and such situations
contribute to the impediment of the
improvement of prison conditions. In mostdeveloping countries, the NGOs andvolunteer organizations are not working
properly in order to improve prison
conditions.

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RESOURCE MATERIAL SERIES No. 57
Similarly, the government agencies
which are supposed to support the prison
administration ( for example- medical
officers and other medical facilities fromthe health department etc.) are also not soeager to provide such facilities to theprisons. In some countries, medical doctors
deployed in prisons are not willing to work
there. Such cases impede the improvementof prison conditions. Such matters definitely
have a negative impact on prisoners.
Depression, health deterioration and manyother negative consequences arise.
6. Some Prison Officers’ Lack of
Recognition of Inmates’ Rights
The right of inmates stipulated in eachcountry’s legislation that governs thetreatment of prisoners must be fully
observed by prison officers when carryingout their duties. It must be realized by all
prison administrators and staff that theprisoners should be treated as humanbeings.
Our group has identified that someofficers lack the commitment to their workor have a mere ignorance or negligence inperforming their work. For instance,
prison officers pay inadequate attention tocomplaints, requests and grievances madeby prisoners regarding prison conditions.
Also, there are some cases where they
provide or demonstrate unfair treatment
for prisoners by distributing clothing or
food unequally. Those situations increase
the dissatisfaction of prisoners withnegative attitudes towards the prison
authority and discourage their selfmotivation of rehabilitation.
Considering the background of prison
officers’ poor recognition towards prison
conditions, two reasons can be imagined;
the one is the low level of salary and thelack of chances of promotion for personnel,
and the other is an insufficient training
system.

408

7. Lack of Inmates’ Positive Attitudes
towards Prison Conditions
It is important that inmates themselves
pay more attention to prison conditions to
be kept in a good state. Actually, mostinmates do not have enough positive
attitudes towards prison conditions.
Furthermore, some of them even ignore thebreakdowns of prison equipment. Such alack of inmates’ positive attitudes can beone of the causes impeding theimprovement of prison conditions. Also, inorder to cultivate inmates positive
attitudes, prison officers themselves shouldhave and show inmates their positive
attitude regarding prison conditions.
The causes for impeding theimprovement of prison conditions
mentioned before are taken from theexperiences of the participating countries.
There may be other causes which hinder
the improvement of prison conditions.
Nonetheless, the most important cause
impeding the improvement of prison
conditions is considered to be the constraintof resources. Similarly, the socio-economic
as well as cultural development of acountry may also influence theimprovement of prison conditions.
V. SOME MEASURES TO IMPROVEPRISON CONDITIONS
Our group first discussed the actual
situation of prison conditions and the major
impediments to the improvement of prison
conditions. Now that these impediments
have been explored, it is necessary tosuggest some countermeasures to elevatethese prison conditions to the desired
standard.
1. Measures for Insufficient Budget
Regarding insufficient budget, although
it is very difficult to increase the budget
overnight where a country is facing
economic problems, systems including a

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
proper mechanism for analysis, assessment
and submitting reports should be
developed. It is not possible to solve all
the problems concurrently, therefore,priority should be given to the minimum
requirements and this should be nonnegotiable and the available budget must
be utilized properly. If there is a possibilityof reducing any costs, such as use ofelectricity, telephone calls or any otherstationary goods, this should be reduced sothat the surplus budget can be used to
improve prison conditions. Such strategies
have been successful in Fiji which can beused as an example for other countries.
Similarly, some mechanical or electricaldevices can also be used and prison staff
can be reduced which would be costeffective in the long run. On the other
hand, as part of the measures to make up
for the insufficiency of the government
budget, establishing a mechanism togenerate profits inside corrections is
recommended. As one possible way to build
such a mechanism, activating the businessof prison work inside correctional
institutions is conceivable.
In addition to these strategies, the actual
need of each prison should also be assessedin detail before the allotment of budget sothat the budget can be distributed properly
among prison institutions.
In countries where the prison buildings
were constructed many years back and arelocated in urban areas, there is an option
to sell the land or to utilize such land forother purposes. New prison buildings canthen be constructed in a place where theland is cheaper, and thereby the prison
conditions could be improved. For thispurpose, model site plans for prisons should
be devised as a priority to maintain
uniformity in terms of architectural design
to be based on SMRs. Privatization of someof the prison management aspects, such as

food, clothing, hygiene and so on could also
be one of the countermeasures to reduce
expenditures. Privatization of prisons has
been introduced in Australia and is foundto be cost effective. But our group does notpropose complete privatization which may
have pitfalls including security problems
and low quality which have been
experienced in some countries.
2. Measures for Lack ofUnderstanding by Government
In order to give the government a clear
understanding about prison conditions,prisons should be well managed and soundprofessional competence of the prison
officers should be developed. Prison
administrators should take the initiative
for making periodical reports to the prison
department and Ministry concerned.
Another initiative is to invite politicians
including ministers and members of
Parliament to visit the prison and makethem appreciate the urgency of
improvement of prison conditions.
Similarly, other officials involved in thecriminal justice system may be invited fromtime to time to visit prisons to make themaware of the actual situation in prisons,
therefore, the improvement of prison
conditions may become a priority of
government. To that end, the prison
authorities should be very honest andprovide adequate information to the mass
media as well as to the government.
3. Measures for Overcrowding
Obviously overcrowding causes
inadequate prison conditions which havealready been mentioned in this paper.
General countermeasures to cope withovercrowding are supposed to be discussed
in detail by group 1, therefore, our group
has dealt with some of the measures to betaken inside the prisons assuming that
there is overcrowding in the prisons,particularly those that have a negative
impact on prison conditions.

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RESOURCE MATERIAL SERIES No. 57
When there is overcrowding in prisonsthe first problem to overcome is theshortage of space. To overcome thisproblem, underutilized and obsolete
facilities can be adapted into new cell
blocks. Other initiatives might include
using the space in a cell room more
effectively, for example, by making shelves
and putting possessions in order. Similarly,
use of accommodation of open camps andopen prisons could be helpful to overcome
this problem. In doing so, a system ofproper security risk assessment is requiredin order to send low risk inmates to such
prisons or open camps. Open camp systems
in Indonesia and open prison systems in
India have been successful. Prison
authorities should be encouraged to explore
innovative strategies for providing
additional accommodation. For example,
some devices for increasing beds such as
using container type beds, mobile camps
and demountable buildings have been usedsuccessfully in some countries. Use of bunktype beds (2-3 stories) may also contributeto increasing bed numbers and providing
better conditions.
To overcome the shortage of goods for the
daily use of the inmates, it would bedesirable to insist that inmates themselvespurchase some such goods at their own
expense and from outside (such as religious
groups). Prisons can also be encouraged
to become self-sufficient in the productionof food stuffs, for example through growing
fruits and vegetables on prison property.
To overcome the shortage of resources
for rehabilitation programs, proper
screening process in rehabilitation of
inmates should be carried out. So thatbudget for programs can be targeted andprioritized. Similarly, the shortage ofprison staff due to overcrowding can beovercome by encouraging volunteer
activities or through the use of temporary
staff system.

410

4. Measures for Insufficient
Disclosure of Information to the
PublicIn order to make accurate information
about prison conditions available to themass media, a designated prison officer or
public relation section in each prison
should be given such responsibility.
Depending upon the situation of eachprison, meetings with the mass media ona regular basis could be held. The officer
in charge of providing such information
should follow the news publications and if
the news was distorted, the immediateconcern should be brought to the attentionof the publisher. Corrections to the news
should be published with a guarantee of
not distorting the information in the future.
Real transparency should be a featureof prison administrations particularly withregard to prison conditions. If there aresome reasons why the government cannot
allocate more budget, sufficient
explanation should also be given to the
public. Therefore, they may come up withsome solutions and it even helps makeindirect pressure on government to draw
attention for cooperation from the outside.
Depending upon the size of prison andthe existing work load, setting up a
separate public relations section is also
desirable. Such a section will regularly
deal with the public in providing theminformation about the prison and obtaining
public opinion which may help for the
better management of prison. Use ofinternet, where possible, would also be agood method for circulating information to
the public and getting public opinion.
5. Measures for Lack of Cooperationfrom Outside
In order to attract private sector
investment inside the prisons, thegovernment should develop infrastructure
and try to attract the private sector. Joint

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
investment by government and private
enterprise would be an appropriate method
to attract the private sectors. Potential
NGOs and religious groups should beselected which are really interested in thework and the government can work
together with such NGOs and religious
groups for the betterment of prison
conditions. Similarly, volunteers should be
encouraged to work in this field. So far as
the cooperation with the government
institutions is concerned, the initiative
should be taken by prison authorities to getsuch adequate cooperation from thoseinstitutions. In order to facilitate this goal,
the Prison Department should get in touch
regularly with the institutions concernedand make them understand theseriousness of the situation. In order topursue educational programs, the Prison
Department should correspond to open
universities and other educational
institutions and get cooperation from them.
6. Measures for the Lack of Some
Prison Officers’ Recognition of
Inmates’ Rights
Today, human rights of prisoners havetaken on a new significance andperspective. Therefore, the prison staff ingeneral and the prison officer in particularshould be quite aware of the fact of how
human rights of prisoners are to be upheldin prisons. To this end, training about theimportance of human rights should begiven to all staff from the highest level tothe lowest level involved in the prison
administration and prison management.
To update the knowledge of the prison
officers and other staff and to make themable to implement correctional policies ina proper spirit, refresher training and on
the job training should be provided inaddition to the basic training. Suchtraining will help to update theirknowledge and make them able toimplement correctional policies in a proper
spirit. To ensure that staff are constantly

reminded of their obligations towards
prisoners, the appropriate authority should
publish information, including procedures
and legislation that enshrine basic humanrights and disseminate this to staff. This
could include the production of handbooks,
posters and where possible use of theintranet and internet.
Similarly, prison authorities should be
able to afford job satisfaction to its
personnel. An officer or staff not satisfied
with his/her job may not provide aneffective and efficient service andultimately it leads to the lack of recognitionof inmates’ rights. In this connection, theattention to the equal opportunities ofprison staff who actually deal with thehuman rights of prisoners should berecognized first and then the principle ofreward and punishment should be appliedstrictly on the basis of performance.
It is important that all prison officers
should also have positive attitudes towards
the prison conditions. For example minor
repairs which can be easily done should be
fixed by the prison officers themselves andbe an example for the inmates. It
contributes to improve prison conditions
without involving any extra cost. This will
help to improve prison conditions.
7. Measures for the Lack of Inmates’
Positive Attitudes towards Prison
Conditions
The prisoners themselves should play avital role in improving the prison
conditions. Prisoners from different
backgrounds need some basic training after
their admission to prison, they should be
provided with an inmate handbook in orderto make them clear about the humanrights, expectations and obligations.
Forming different committees such as acleaning committee, maintenancecommittee, self-management committee,
etc. among prisoners can be another way

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for cultivating their positive attitudes
towards prison conditions. If programs are
conducted with the introduction ofcompetition systems, highly evaluatedcommittees are rewarded, and theirattitudes can be stimulated and enhancedby those incentives. Good relations
between the prison staff and the prisoners
can also be expected in the course of suchactivities to achieve these goals. An
environment for self-motivation among
prisoners should be created in the prison
so that they may develop positive attitudes
towards the efforts to improve prison
conditions.
VI. METHODS AND PROCEDURESTO SECURE THE EFFECTIVENESS
OF LEGISLATION REGARDING
PRISON CONDITIONS
Establishing systems such as inspection
and reporting systems are considered a key
to a success for securing the effectivenessof the legislation regarding prison
conditions. In this connection, Rule 55 of
the SMRs stipulates as follows:
Rule 55
There shall be a regular inspection ofpenal institutions and services by qualified
and experienced inspectors appointed by acompetent authority. Their task shall be,in particular, to ensure that these
institutions are administered in accordancewith existing laws and regulations and witha view to bringing about the objectives ofpenal and correctional services.
Therefore, our group discussed theinspection and reporting system in each of
the participating countries which is asfollows:
1. Fiji
The officers in charge of prisons are
required to visit all wards, cells, yards,
workshop, kitchen and latrines and other412

parts of the prison two times a day. Such
officers are also required to see all inmatesdaily, if possible. He shall submit his reportto the Supervisor of Prisons for perusal.
The Supervisor of Prisons has to inspect
all prisons under his control as frequently
as possible and as per the direction of theCommissioner of Prisons. A report of his
inspection is to be forwarded to theCommissioner of Prisons.
The
Commissioner of Prisons shall thoroughly
and systematically inspect all prisons atleast twice a year and submit his report to
the Minister of Justice. Similarly, theVisiting Justice shall visit and inspect a
prison at least once a week at any time andmay inspect all books, papers and records
relating to the management and disciplineof the prison. He will also report to theCommissioner of Prisons of any matter ofinterest made through his inspection orvisit. There is also a Visiting Committee
in Fiji which consists of four or five people
nominated by the Minister of Justice. SuchCommittee shall visit and inspect prisonsat least once every three months and makea report to the Commissioner of Prisonsand to the Minister of Justice. Other visits
like Official Visitors, Ombudsman and
Government Officials, Provincial Officials
and NGOs are allowed after gaining theCommissioner of Prisons approval.
2. India
In India, the Inspector General of
prisons shall inspect all departments ofevery jail at district headquarters at least
once a year and every jail at Sub-Division
headquarters at least once in two years.
During inspections he shall personally see
every prisoner and give reasonable
opportunity of making any application orcomplaint and shall investigate anddispose of such as relate to jail discipline.
He shall inspect the yards, wards, cells,
worksheds and other enclosures,conservancy arrangements, and the
medical administration, shall see the food

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
and ascertain that it is of proper quality
and quantity and generally satisfy himselfthat the building and premises are inproper order. He shall satisfy himself thatthe orders of government regarding thearrangement and periodical destruction ofrecord are observed. Immediately after theinspection the I.G. shall furnish theSuperintendent with a memorandum
embodying his opinion of the manner inwhich the jail is administrated the extent
to which the officers appear familiar with
their duties, together with any suggestions
or orders for the guidance of theSuperintendent.
The Inspector General shall exercise fullcontrol over all expenditure in jails
submitting annually to government,
through a comptroller, a budget of the funds
necessary for their maintenance in such amanner and at such time as may berequired. All monthly and other bills for
jail expenses of every description shall be
submitted to and audited by the
Accountant General’s Office.
3. Indonesia
In Indonesia, the Superintendent ofprisons inspects blocks, cells, kitchens, foodrooms, etc, every day, except Saturday and
Sunday. If the Superintendent of prisonsfinds any complaint by the inmates, he will
discuss such matters with his staff to solve
the problem, but if the problem is found to
be serious, the Superintendent of prison
will form a Committee to investigate thecase. The result of investigation should bereported to the head of the branch office of
the Department of Law and Legislationand to the Director General of Correction.
There are three types of inspection for
prison conditions in government, theinspection by Inspector of Department of
Law and Legislation, inspection by
Director General of Correction and Staff
and inspection by Auditor of Development
and Finance Agency (every year, at the endof the fiscal year). Similarly, the membersof the House Representatives, theInternational Committee of Red Cross,Indonesia Branch and other religious
groups also visit the prisons. The Red
Cross and religious groups often provide
food and clothing to the inmates.
4. Japan
In Japan, the prison warden mustobserve the administration in prisons at
any time, and in case of complaints madeby inmates, he is ultimately responsible for
examining the contents of those complaints
and taking any action for the improvementof prison conditions if necessary.
On the other hand, regional correction
headquarters and inspecting officers who
are designated by the Minister of Justice,alternately visit each prison to inspect andensure proper administration every year.
In Japan, there are two types ofinspection in government. Administration
Inspection Bureau as a subordinate
department in Administration Affairs in
the Prime Minister’s Office and Board ofAudit, as a kind of independentadministrative committee, are supposed tomake inspections. Administration
Inspection Bureau inspects and ensures
the proper administration by eachdepartment of government, and the resultsof inspections are reported to the Cabinet
to a regular target.
On the other hand, the Board of Audit
inspects and ensures the proper executionof budget in each department ofgovernment, and also is obliged to submit
the reports to the Diet through Cabinet.
Thus, it can be inspected whether or notprison conditions are managed properly
from the point of execution of budget.
In Japan, there is no organization out ofgovernment which is designed to aim at

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RESOURCE MATERIAL SERIES No. 57
only watching correctional institutions.
However, many NGOs, such as the Japan
Federation of Bar Associations andAmnesty International Japan, function as
general human rights observer groups.
These groups propose the government
progress reformation with perspectives
different from government, and submit thereports to the United Nations. These
activities take part in the inspection of the
management of correctional institutions inJapan.
5. Nepal
There is no regular reporting system assuch in Nepal about prison conditions. But
the prison officer is required to submit amonthly report to the Chief District Officer.
The Chief District Officer should visit theprison on a regular basis and be aware of
the prison conditions. Prison officers arealso required to submit an annual reportabout the activities of the whole year at theend of each fiscal year. Non-Governmental
Organizations involved in the field of
human rights, on their request, are also
permitted to visit prisons.
So far as the proper utilization of thebudget allocated to the prison is concerned,
an internal audit is made by theComptroller General and final audit ismade by the Auditor General. This final
report is required to be submitted toparliament. Thus the system of checking
balances on the budget is transparent andaccountable.
The reporting system in most of theparticipants’ countries is not found to be
w o r k i n g p r o p e r l y, t h e r e f o r e , a n
independent, transparent, impartial andfair body should be set up and the power
to visit and inspect every prison should begiven to this body which shall report on
prison conditions to the Ministerconcerned. A copy of the report should besent to the parliament. If the reporting

414

system functions properly, the prison
conditions will be improved.

VII. CONCLUSION
This report was compiled following
extensive group discussions, where allmembers participated, expressing theirideas and bringing useful and relevant
perspectives from their own countries. The
discussion was augmented by the immense
contribution of our two faculty advisors andalso Mr. Grant, the visiting expert from
Australia.
The paper itself explains measures toimprove prison conditions and may notsatisfy all readers perceptions or thinking.
However, it may help others especially fromdeveloping countries to identify the
problems of impediment for improving
prison conditions that we have outlined inthis report and we hope that there will be
opportunities to implement some of thesolutions or countermeasures that we haveoutlined.
It is therefore necessary for all correction
administrators to work towards one
common goal and that is to provide humane
treatment to offenders taking into
consideration the human rights concept
thus helping them successfully to
reintegrate back into society.
In this regard well structured, improved
prison conditions contribute a lot to thepersonal development (attitude, behavior,
knowledge, skills) to successful integration.

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEGROUP 3CURRENT TRENDS AND PROBLEMS OF PRISONERS,AND MEASURES FOR EFFECTIVE TREATMENT
Chairperson
Co-Chairperson(Sub-topic 1)
Co-Chairperson(Sub-topic 2)
Co-Chairperson(Sub-topic 3)
Rapporteur
Co-Rapporteur(Sub-topic 1)
Co-Rapporteur(Sub-topic 2)
Co-Rapporteur(Sub-topic 3)
Advisors

Mr. Wayne Albert Moody(Belize)

Mr. Akihiko Sakamoto(Japan)Mr. Takahiro Terasaki(Japan)Ms. Hiromi Kobayashi
Ms. Sivakorn Kuratanavej(Japan)(Thailand)

Mr. Shigeru Nakasato(Japan)Mr. Gunarathna Kuruppu(Sri Lanka)

Ms. Martina Davila Jimenez
Deputy Director Keiichi Aizawa
Prof. Hiroshi Tsutomi
Prof. Akihiro Nosaka(Peru)(UNAFEI)(UNAFEI)(UNAFEI)

I. ACKNOWLEDGEMENT
Acknowledgement is made to Deputy
Director Keiichi Aizawa, Professors Hiroshi
Tsutomi and Akihiro Nosaka who haveadvised us throughout the whole discussion
process. Special mention must also bemade to our visiting experts, especially Mr.
Luke Grant and Dr. Larry Motiuk, whose
contributions have been immeasurable.
We are indebted to all participants who
contributed to the accessing of relevant
information and gave their input in ourgroup discussion in order that their views
could be reflected. We also felt mostgrateful for our linguistic advisor and ourinterpreters for having made great
contributions for the completion of thisdocument.
II. GENERAL INTRODUCTION
The discussion of Group 3 highlighted
trends, conditions, and treatment of threegroups of prisoners: foreign, drug-related,
and female prisoners. These are groups ofprisoners who definitely have special
needs. Mention must be made to otherspecial groups that are as important but
were unable to be highlighted such as
young, elderly, hard-core, AIDS/HIV
infected, mentally ill and indigenous/
minority prisoners. In view of theworldwide trend of change, we attempted
to draw out the problems concerning thetreatment programs for these three groups
of prisoners and to highlight the effective
countermeasures.
Participants related to foreign, drugrelated, and female prisoners were
proportionally allocated to the group,
giving rise to three sub-groups that wereadequately able to address the sub-topics.
The participants of each sub-group have
utilized their expertise in discussions andhave provided a rich outcome in this415

RESOURCE MATERIAL SERIES No. 57
document. Each sub-group has smoothly
facilitated the plenary meetings related totheir sub-topics.
III. FOREIGN PRISONERS
A. Introduction
According to the worldwide trend, thephenomenon of globalization has effected
every sphere of life including the capacity
to move from one place to another. People
get more access to travel across borders
bringing their diversified cultures andlanguages. When such persons violate thelaws of other countries, they have to receive
the results that may come in the form ofdetention or incarceration. One of the
problems that correctional systems invarious countries have encountered is theincreasing number of foreign prisoners.
As paragraph 6 of the Standard
Minimum Rules For The Treatment of
Foreign Prisoners (hereinafter referred to
as “SMRs”) stated, “The following rules
shall be applied impartially. There shall be
no discrimination on grounds of race,
colour, sex, language, religion, political orother opinion, national or social origin,property, birth or other status.” As for thetreatment of foreign prisoners these rules
should be respected. Due respect should
also be given to the “Recommendations on
the treatment of foreign prisoners”
approved by the Seventh United Nations
Congress on the Prevention of Crime andthe Treatment of Offenders in 1985.
B. Definition
1. Differences in Definition of
Foreign Prisoner
The term “foreign prisoner” has many
shades of meaning. Generally speaking, itmeans a prisoner who has a foreign
nationality, but sometimes it includes“foreign-born prisoner” or “foreigndetainee”. It was found during thediscussion that each country has a different

416

definition of foreign prisoners. Somecountries like Peru, Sri Lanka, and Belizedefine foreign prisoners as persons ofdifferent citizenship or nationality, whilein Thailand, foreign prisoners cover anumber of hill tribes or minority groups
who have no nationality but reside in the
country. Japan defines foreign prisoners
as those with foreign nationalities, but
designates those offenders who needdifferent treatment from local prisoners as
F-class prisoners.
2. Definition Resulting from
Discussion
On the ground that each country has its
own definition, the group has broadly
discussed and has unified an appropriate
definition of foreign prisoners. It is agreed
that citizenship or nationality is the firstimportant component. The othersupporting component that should be taken
into account are the prisoners’ needs fordifferent treatment and the fact that theyshall be deported to their respective
country after the end of their detention.
Resulting from the discussion, our grouphas come out with the definition of foreignprisoners as those persons having
citizenship and/or nationality of anothercountry, who are in custody. Such persons
have special needs related to theirtreatment and welfare, and are normallydeported after completion of sentence or
detention.
C. Trends (See Annex 1)
Although some countries lack statistics
corroborating this upward trend, in many
countries the number of foreign prisoners
seems to be on the increase. As for the typeof crimes committed by these prisoners,
most countries reported that drug-related
crimes are shooting up.
The characteristics of crime classified bynationality, in Japan, larceny is the most

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
prevalent offenses committed by foreigners.
In Belize reports, illegal entry andprostitution account for most foreignprisoners. In Sri Lanka, there are many
foreigners committing child abuse. Peru
reports that members of terrorist groups
who come from neighboring countries arein custody.
As for Thailand, a lot of foreign prisoners
have committed drug-related crimes,
mostly drug trafficking. Since drugtrafficking is considered as one of the mostserious crimes, the offenders shall receive
the most severe punishment, whichconsequently result in the long-term
imprisonment of foreign prisoners. While
for Japan, there is not a high number oflong-term foreign prisoners. Other
countries like Belize, Peru and Sri Lanka
have reported relatively low rates of foreignprisoners. Annex 1 shows the rate offoreign prisoners in some countries
discussed by the group.
D. Problems
1. Difficulty in Communication
Being in custody in a foreign land withdifferent languages, one will certainly havea lot of difficulties in adapting himself/
herself. The stress, anxiety, and frustration
are compounded by the fact that
communication is minimal.
Foreign prisoners who can not speak the
local language shall inevitably havedifficulties in communication with local
prisoners. Due to language barriers, theycannot express their feelings, their waysof thinking, and the differences in custom.
Lack of communication aggravates
misunderstanding and may cause serious
conflicts with local prisoners.
Foreign prisoners also havedisadvantages in communicating withprison officers. They cannot easily
understand prison regulations and the

instructions of officers. Gradually, someforeign prisoners come to feel estranged
and reflect their problems by filingobjections to various authorities expressing
negative reports on prison administrations.
2. Difference in Lifestyle (Culture,
Food, and Religion)
Foreign prisoners have different life
styles, in terms of culture, food, andreligion, which need to be taken care of. If
the prison does not take good care of thisproblem, the prisoners may suffer fromserious loss in their mental/physical health.
For effective treatment of foreign prisoners,
some specific facilities and activities haveto be provided to satisfy the need of healthcare, religious practice and food restriction.
However, this may not be practiced in somecountries due to budgetary constraints.
3. Difficulty in Obtaining
Information Concerning thePrisoners
It is difficult to obtain information
concerning the prisoners from agencies,
namely criminal justice agencies of thehome country of the prisoners, because
criminal justice agencies of different
countries do not share information on aregular basis. In some countries, there isno system of identifying or classifying
foreign offenders, which result ininsufficient information. Lack of
information may lead to anunderestimation of risks, such as thepossibility of escape. In this regard, thetreatment of foreign prisoners can not be
handled in an effective way.
4. Lack of Assistance from Family/
Relatives
Unlike local prisoners, foreign prisoners
have less possibilities to receive assistancefrom their relatives or friends. They
basically have to depend upon theirdiplomatic representatives. However they
are not able to provide personal care which

417

RESOURCE MATERIAL SERIES No. 57
should be provided by the family, relatives
and friends. Without such assistance,
foreign prisoners may have moredifficulties in adapting themselves to life
in prisons.

officers to get sufficient information, so thatproper custodial measurements and/or
rehabilitative programs can be arranged.
In this regard, careful assessment has tobe conducted for each foreign prisoner.

5. Less Chance of Obtaining
Privileges
Due to administrative and/or legal
reasons, foreign prisoners are sometimes
not allowed to have access to early release
scheme such as parole or conditional
release. In some countries, an early releasemechanism is performed with an unequalbasis among local and foreign prisoners.
While Japan grants parole to both local andforeign prisoners, Sri Lanka and Belize, on
the contrary, apply parole to only local
prisoners, but not to foreign prisoners. In
the correctional services of Peru, remission
days are accumulated upon the work ofeach prisoner. The prisoners, both local
and foreign, who engage in the work
remission scheme are applicable for early
release. As for Thailand, the early release
derived from good conduct allowancesystem is awarded only to local prisoners,
but not to foreign nationals.

2. Provision of Materials to Facilitate
Communication
On entering an institution it isimportant that all relevant information ismade available to the inmates. This is evenmore needed for foreign prisoners. The
production of materials or publications canalleviate many basic problems that would
normally arise and can facilitate better
communication. Rules and regulations,prepared in the languages of the prisoners
will be an assistance to better
communication. In the case where theprisoners are illiterate, video productions
can be used to give such relevant
information. As paragraph 30 (3) of SMRs
prescribes the arrangement forinterpreters should be made in thedisciplinary punishment procedures.

In the same vein, they sometimes haveless chances of being allowed leave, work
release, etc. Also, they may be more likely
to put in a maximum-security institution(which itself could lead to longer
imprisonment). Such disparity found in
the treatment of foreign prisoners may
invite criticism calling such practice a formof discrimination.
E. Coutntermeasures
1. Careful Assessment
Having a foreign prisoner in custody canbe problematic if prison officers do not havesufficient information on that prisoner.
Individual assessment is one of theactivities that should be done upon theintake of each prisoner. In case of foreignprisoners, it is important for the prison

418

3. Staffing and Training
In order to communicate with foreignprisoners, it is necessary to have basic
knowledge in foreign languages.
This problem can be solved by:(i) Recruitment and training of staff andvolunteers that are able tocommunicate in foreign languages, andproviding them with necessary training(ii) Providing of local language courses forforeign prisoners(iii)Exchange of skilled staff should be
encouraged as it relates to different
institutions.
4. The Cooperation with Volunteers
and NGOs
In order to deal with foreign prisoners,
it is worthy to search for the assistancefrom volunteers and NGOs in thecommunity. Appeals can be made to115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
volunteers to assist in language barrier
problems that come with difference inlanguages such as letter writing andcensoring. Volunteers and NGOs can also
perform other rehabilitative activities withforeign prisoners within the prisons as well
as aftercare programs. For example, an
NGO named “Ansar Burni Advocate” inPakistan provides some programs whichassist foreign prisoners be deported.
5. Promoting Cultural AwarenessThe need for cultural awareness isanother countermeasure that can alleviate
unnecessary stress caused by lack ofunderstanding. Such events as culturalawareness weeks or months can be a very
good means of sensitizing the foreignprisoners, local prisoners, and the staff.
This will also result in more harmony inthe diverse groups being held in custody.
There should also be meetings between theparties involved in the life of foreignprisoners, so as to seek better treatment
programs.
6. Cooperation with Embassies
Assistance extended by embassies isvaluable because it comes from theprisoner’s compatriots and it makes alinkage of the foreign prisoners with theirrespective countries. Paragraph 38 of
SMRs guarantees the foreign prisoners theright to contact the diplomatic or consular
representatives of their own countries.
Prison officers should seek cooperation
with embassies of foreign prisoners. The
contact with embassies can also lead tosmooth implementation of deportation ortransfer of foreign prisoners.
7. Provision of Special Resources
Attending to the Needs of
Prisoners
Recognizing that foreign prisoners arethose in need of special treatment, prison
officers should provide special resources
attending to their needs. In this regard,

certain facilities and necessities should be
provided such as books, newspapers, food,religious ornaments and specific room for
prayers. As paragraph 41 of SMRs
prescribes, specific consideration should begiven to the religious needs of foreignprisoners.
8. Legislative and/or Administrative
Changes to Offer Equal Treatment
to Foreign Prisoners
Legal and administrative changes are
required to overcome obstacles resulting inunequal practices such as unfair
application of early release mechanisms toforeign prisoners. Relevant bodies,
legislative and/or administrative, should
recognize the fact that the problem exists
and should pay efforts to minimize it.
9. Reducing the Number of Foreign
Prisoners
The following are steps that can assist
in alleviating the overpopulation of foreignprisoners:(i) Deportation: Deportation can render
the speedy return of inmates out of thecorrectional system instead of a longdetention period. This would assist
greatly as it relates to illegal-entry
inmates. Prior to deportation, themechanisms such as diversion, early
release, and speedy trial should be
encouraged.
(ii) Transfer of Prisoners: Treaties
between states which allow sentences
to be carried out in the country of theforeign offender. Thailand is an
example where foreign inmates aretransferred back to their home where
the sentence is carried out. Suchtreaties are bilateral.
F. Conclusion
It is quite obvious that all countries needto review their policies and procedures as
it relates to the treatment of foreign

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RESOURCE MATERIAL SERIES No. 57
offenders. In many cases, there is no clear
and concise account of what the missionis, with respect to care, custody and control.
When there are clear statements ofprinciple that should be applied to the lifeof such inmates, there are measurable
components that can be used to evaluate
whether the mission is being accomplished.
It is the hope that serious considerations
and actions would be taken as it relates tothe countermeasures suggested in thispaper.
IV. DRUG-RELATED PRISONERS
A. Introduction
Substances such as heroin, cocaine,cannabis and amphetamines have adependency nature. Therefore many
people are hooked on drug abuse and facedifficulty to dissociate themselves from thespell of drugs. In view of the globalizationof production, trafficking and theconsumption of these drugs, we discussed
the problems and countermeasures of drugrelated prisoners.
B. Definition
This group has defined “drug-related
prisoners” as prisoners who are in custodyfor drug offenses as well as those who arein custody for other offences and are
dependent on drugs. In the prisons of somecountries, even in those countries where
drug abuse does not constitute criminal
offence, there are many drug-dependent
prisoners who are imprisoned for othercrimes such as theft or robbery.
In addition we define “drug offenders inprison” as those who are in custody for drug
offences.
C. Situation & Trend (See Annex 2)
The ratio of drug-offenders in prison to
the total prisoner population is relatively
high in each country. In Thailand, it was
58.6% in 1999, the highest portion among420

the countries respected in our group. Next
comes Sri Lanka with 39.4%. In four offive countries we surveyed drug offenders
occupy more than a quarter of their prison
population. The ratio of drug-related
prisoners is expected to be much higher
than this.
Furthermore, the number of drug
offenders in prisons is on the increase inmost of the countries firstly by more active
law enforcement efforts and harsher
sentencing usually accompanied by legal
reforms asking for heavier punishment
drug offenders, and secondly by theinfusion of drug abuse into society.
Consequently, the number of drug-related
prisoners is also on the increase.
Other common trends found in many
countries are as follows:- There is an increasing number offemale drug-related prisoners.
- In some countries, the recreationaluse of drugs among juveniles is
becoming prevalent.
- Drug distributors and smugglers arefound to be involved with gangsters.
- There is a relationship between
poverty and drug trafficking.
However, the situations are notcompletely the same in each country. First
there are differences in the legal system of
each country. For instance in Peru, drug
abuse is not a crime, while in othercountries, it is a crime to which penal
sanction is applied. Thus, in Peruvian andThai Prisons, the number of drugtraffickers is more than that of the numberof abusers while in Belizian and Sri Lankan
prisons, the number is almost the same.
Japan is the only country where thenumber of abusers overwhelms the numberof traffickers.
Also, there are differences in types ofdrugs socially causing problems. In

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Central America, the most serious problem
is cocaine. In South Asia and the Southeastern part of Asia, the heroin problem ishistorically serious and, in Eastern Asia
and recently Southeastern Asia, somecountries are affected by the wide spreadof amphetamines. The globalization of
drug trafficking is making the situation
more complicated than ever.
D. Problems
1. Access to Drugs in Prison
In some countries, it has been the mostserious problem that prisoners get accessto drugs within the prison. Some inmates
may receive drugs from visitors, from mail,or from other smuggling means. Thus,
prisoners develop a drug-trafficking
network within prison. Further, it was
found that some prison officers
intentionally overlooked the traffic of drugs
in prisons, and sometimes, themselves
traffic drugs. If drugs exist inside theprison, it is quite clear that the control ofprisoners becomes more difficult, that drug
dependants cannot get rid of their habit,
and that treatment programs cannot be
implemented properly.
2. High Recidivism Rate of DrugDependents
Drug-dependents have a high tendencyof recidivism: upon their release fromprisons, they have to go back to the samecommunity where drugs are available.
High recidivism rates can lead toconcentration of drug dependents inprisons, which pushes up the prison
population.
In contrast, it is found out that therecidivism of traffickers is not high, andthat they benefit from treatment programs
offered to general offenders such as
vocational training. So the issue of reoffending of traffickers will not be discussed
in this paper.

3. Physical and Mental Health
Problems
Narcotic drugs basically do harm to thephysical/mental conditions of the abusers.
For example, heroin addicts are physicallydependent on drugs and have to go througha physically tormenting period when they
undergo detoxification. Also, long-termabuse of amphetamine/methamphetamine
may cause a symptom called “flash back”
that refers to a sudden and unintended reexperiencing of the situation which theabuser experienced when he/she abused
the drug even when he/she is sober. In
addition, it is known that the mental
conditions of drug-dependants are usually
volatile and unstable. The treatment ofdrug-related prisoners consequently needs
to take into consideration the conditions of
their physical and mental health.
E. Countermeasures
1. The Control of Drugs in Prison
Drug control efforts in prison arebasically categorized into two parts. First,
there are efforts to eradicate the access to
drugs available in prison. For example, thecheck of incoming mail and the inspectionof carried-in personal belongings, body/patsearch of visitors, officers and new
prisoners entering the institution, and therestriction of the sale of goods allowed to
be brought into premises of institutions toauthorized stores, are carried out.
Second, there are efforts to deter drug
abuse by maximizing the probability ofdetection of drug abuse. These efforts
include cell searches, urine testing andintelligence work (e.g. cooperation with
police, use of informers, etc.). In addition,
to coordinate these efforts, theestablishment of an anti-drug committee
within institutions are considered to beeffective. If the incident is found,perpetrators should be sanctioned
accordingly. For example, if an officer
conspires in the drug trafficking, he/she

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RESOURCE MATERIAL SERIES No. 57
should get not only receive penal sanction,
but also an administrative sanction suchas discharge.
Of course the prison staff should be welltrained so that they are experienced in theimplementation of all the drug control
efforts.
2. Treatment Programs to Prevent
Drug Recidivism
Tr e a t m e n t p r o g r a m s f o r d r u gdependants should focus on the core
problems of drug abuse: physicaldependence and mental dependence.
To d e a l w i t h f i r s t d e p e n d e n c e ,medication is available for some types ofsubstances. For example, methadone,
known as a substitute for heroin, is themost widely used and reliable medication.
H o w e v e r, m e d i c a t i o n f o r c o c a i n edependents and amphetamine/
methamphetamine dependents are not yet
developed and are still at the research
stage.
Mental dependence should be dealt bypsychological treatment. Although there
are so many types of psychologicaltreatment, a treatment method which has
been found to be the most effective is
cognitive-behavioral treatment. Cognitivebehavioral treatment has been used in
Canada, the U.S., the U.K. and othercountries and evaluated favorably. TC(Therapeutic Community: a program whichallows prisoners to run a drug-free unit as
a community) and similar self-help typegroups have been found to be effective andnow introduced to Asian countries such as
Malaysia and Thailand. Some TC
programs have religious backgrounds andthis testifies to the success of spiritual/religious programs such as conducted in Sri
Lanka.

422

Support from family members as well as
peers is also crucial. Schemes facilitating
the interaction with family members suchas Family Days (when an institution is
open to family members) should be
introduced and encouraged.
Supplementary programs including
vocational, educational, PE (physicaleducational) and recreational programs arealso expected to contribute to the reductionof recidivism by stabilizing the drug
dependent prisoners into the normal life.
Aftercare services such as halfway
houses and continued community
treatment are also essential because readaptation to social life is the key to thesuccess of drug treatment. Lay/professional volunteers, NGOs and othercommunity service organizations will bebeneficial in this respect.
Programs discussed in this section are
mainly available to convicted prisoners, but
the correctional authority has to pay every
effort to put their inmates in contact witheffective programs.
3. Reduction of Contact with DrugRelated Prisoners
Further, the influence of drug-related
prisoners on non-abusers cannot be
overlooked. Through interaction with drugrelated prisoners, non-abusers may beintroduced to and get interested in drug
abuse.
Regulation of contact with/among drugrelated prisoners is necessary to control
drug abuse in prison, prevent the formationof drug offender networks, and nurture theprison environment conducive to thesuccess of drug treatment programs.
To reduce contact, classification,categorization, and/or segregation must be
utilized. This should be based upon the

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
introduction as to how offenders wererelated to each other before they enter theprison.
In addition, the control of movement ofinmates, which do not allow the interactionof inmates belonging to different groups(e.g. groups set up according to workshop,
wings, etc.), is effective to cut off thetrafficking of goods within institutions.
Also the control of conversation of inmates
which is meant to reduce the exchange of
information on occasions where
supervision is minimal is effective to reduce
communication related to drug abuse/traffic within institutions.
4. Medical and Psychological Care
To provide special medical/psychologicalcare, meeting the unique needs of drug
abusers, correctional institutions need tocarefully assess drug dependent prisoners.
To meet their medical needs, correctional
institutions need to recruit psychiatricdoctors, nurses and other competent staff.
These staff are required to monitor theconditions of the drug dependent prisoners
who need special health care, to counsel
and provide medication and to advise
custodial staff. Wise and careful use of
single cells should be made upon therecommendation of medical staff.
To take care of their psychological needs,interviewer schemes which enableprisoners to talk to officers/volunteers whoare psychologically trained at any timeshould be developed.
F. Conclusion
Many countries in the world are afflictedwith the plague of drug abuse. Severe
health, social and economic problems are
emerging associated with the abuse ofdrugs. It is also turning law abiding young
people into criminals.

From the statistics shown in Annex 2, itis seen that more than a quarter ofprisoners are drug offenders except in
Belize. It is easily seen that drug-related
offenders occupy a much higher percentage(conceivably, almost half) of the prisoner
population.
With the influx of this large number ofdrug related offenders, many countries are
now confronted with a host of new problems
hitherto not experienced in the past.
First of all it is necessary to keep the
drug abusers separated from othercategories of offenders in their own interestand that of others. But it is not an easytask to keep them separated inovercrowded institutions, thus there is agreat possibility of their mixing with others
and promoting the habit of drugs amongst
other offenders.
With these difficulties drug related
offenders who are in the penal institutions
must be assisted by correctional officials
in order to return to society to lead a normal
and productive life.
These
countermeasures and treatment programs
which we highlighted here in this reportin detail, should be applied effectively with
their cost-effectiveness being monitored
regularly.
V. FEMALE PRISONERS
A. Introduction
Paragraph 6 of SMRs, which is cited,
relating to the treatment of foreign
offenders, states that there shall be nodiscrimination on the grounds of sex.
However, the discrimination does exist andvarious reasons have been given for thelack of priority for treatment of female
prisoners. One such is the fact that they
make up such a small proportion of thecorrectional population, secondly thecriminality is not serious. Also the423

RESOURCE MATERIAL SERIES No. 57
correctional system has failed to recognize
the diversity among female prisoners by
putting them into one category. However,in recent years, the number of female
prisoners has been increasing in a lot ofcountries.
In view of this situation, the treatment
system for female prisoners should takeaccount of their specific needs which are
different from that of male prisoners while
attending to their individual variety.
Therefore, we discussed the effective
treatment system for female prisoners,
based on the actual circumstances in eachcountry.
B. Characters & Trends (See Annex 3)
In recent years, the number of female
prisoners has increased. There are different
social backgrounds in female criminality.
The penal system in each country differs
too. In some countries, female prisoners areincarcerated in the same prisons with maleprisoners, but are placed in separate wingsof the prisons. In this case, female
prisoners may not be able to get access to
sufficient treatment of the prisons.
Characteristics and trends of female
prisoners found in the discussion are:1. Female prisoners represent a
minority scale compared to maleprisoners (5 % - 15 %).
2. There is an increasing trend of
population of female prisoners inmany countries.
3. There is an increasing trend of female
prisoners committing drug related
crime and crime against property(theft/robbery).
4. Most female prisoners have low
education backgrounds and are
unemployed.
5. Most female prisoners are victims ofabuse or are forced/introduced tocrimes by male partners.

424

C. Problems
Since female prisoners make up only asmall proportion of the total prison
population, treatment services andprograms are basically designed for malerather than for female prisoners. Upon thediscussion, the group has found that mostservices and programs are male-centered,
which have led to problems concerning thetreatment of female prisoners as follows:
1. Male-Centered Services(i) Male-Centered Allocation of SpaceIn some countries, there are correctional
institutions for female prisoners, while inother countries, female prisoners areincarcerated in a section within the same
campus of male prisoners. Relating to thispoint, paragraph 8 of SMRs recommends
that different categories of prisoners shallbe kept in separate institutions or parts ofinstitutions taking account of their sex andspecifically that men and women shall as
far as possible be detained in separate
institutions; in an institution which
receives both sexes the whole of thepremises allocated to women shall beentirely separate.
However, space and facilities provided
for female prisoners are overlooked and are
relatively small. It is found that female
prisons or female sections become easily
overcrowded due to the prison authority’s
delay in responding to the increase of
female prisoners and in adjusting the space
allocation between male and female
prisoners. For example, it is recognized by
Japan and Peru that sizes of female
sections in male prisons and, in case ofJapan, female prisons are small and do notshare an equal space allocation to that ofmale prisoners Also, it should be pointed
out that there is a tendency that female
sections specially set up within maleprisons suffer from worse conditions thanfemale prisons do.

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(ii) Male-Centered Attention to Daily Basic
Needs
Women in general have specific needs forunderwear, cosmetics, and some otherfeminine necessities. Although these are
the basic needs of women, correctional
systems often do not recognize them anddo not allocate enough budget to satisfy
these needs. This is another reflection of
male-centeredness of correctional
treatment. Basically, Thailand provided
clothes for prisoners, but there is nodifference between male and female; andthe clothes are likely to be more useful tomen. In Japan, even though some special
necessities such as underwear are provided
for female prisoners, there are still
problems concerning the quality andvariety of those necessities that do notserve the real needs of female prisoners.
(iii)Male-Centered Provision of HealthCare (including Insufficient ChildCare)
A lot of correctional institutions forfemales do not have sufficient health careservices. Despite the fact that women needspecial medical services such as
genealogical medical care, breast cancer
and uterine cancer checks, most female
institutions are poorly equipped and staffedin terms of medical services.
An extreme example can be seen in
Thailand. The only correction hospital of
the country lacked an in-patient ward forfemale prisoners for very long time. In caseof operation, female prisoners would
receive an operation and would be broughtback to women’s prison within the sameday. In recent years a female ward has
been established within the said hospital.
Apart from general needs of medicalcare, female prisoners sometimes needextra services concerning their pregnancy
and child care. These needs require special
food, clothes, and facilities, but they tend

to be overlooked in prisons.
2. Male-Centered Programming(i) M a l e - C e n t e r e d Av a i l a b i l i t y o f
Programs
Female prisoners have historically not
been given the same range of opportunities
as male prisoners. Their special needs havebeen overlooked when programs have been
designed and resources allocated.
Treatment facilities for education,
vocational training, sports and recreation
are always located in the main part of theprisons where only male prisoners can get
access. This problem does not occur insome countries like Japan and Sri Lanka;
but it is found quite seriously incorrectional systems of Belize, Peru, andThailand.
However, in cases where those programs
are available to female prisoners, thevarieties of the programs are more
restricted than that arranged for maleprisoners. The smaller number of female
prisoners and the smaller size of female
prisons have been used as an excuse for
not providing female prisoners with equal
opportunities to choose programs. This
program management has generally put
the female prisoners at a disadvantage.
(ii) Male-Centered Content of Programs
Most programs provided for prisoners
have been historically introduced andpracticed in prisons for a very long time,
regardless of the change of market needs.
Prisoners are given works or vocational
training programs that are alreadyavailable in prisons. In Peru, female
prisoners will get access to works andvocational programs such as cooking,clothes making, hair dressing, andhandicraft making. Actually, these types
of work do not respond to the need of thelabor market that needs more modern
skills such as using computers. When new
programs are introduced into prisons, they425

RESOURCE MATERIAL SERIES No. 57
are likely to be practiced in male sections
first.

family, peer, anti-social associates, andanti-social cognition.

Female prisoners have needs for special
programs. Because their job market isdifferent from that of male prisoners, thecontent of vocational training should not
be the same. Also, they have their specifictaste for recreational activities that isdifferent from male prisoners. However,these needs specific to women are not welltaken into consideration, and, as a result,the content of programs available to female
prisoners does not differ much from thatavailable to male prisoners.

3. Establishing Programs for Female
Prisoners(i) Educational Programs
Since it is found that female prisoners
have low levels of education, which relates
to unemployment, it is necessary to provide
them with education programs; so that they
can have sufficient backgrounds, which canlead to employment after their release.

D. Countermeasures
Considering the characteristics,
trends, and problems of female prisoners,
the group has found those necessary
countermeasures to be operated so as toalleviate the problems of treatment offemale prisoners and to increase
effectiveness in the treatment programs.
1. Fair Allocation of Resources
Fair allocation of resources, taking
specific needs of female prisoners, is themost important countermeasure to betaken. Physical resources (e.g. space andfacility), financial resources (e.g. budget fordaily goods such as underwear) and humanresources (e.g. the number and qualified
staff) should be equally available to female
prisoners. Further, it is recommended toestablish separate institutions for female
prisoners where treatment programs
specially catering for the needs of female
prisoners are provided by female staff. This
recommendation is related to paragraph 53
of SMRs.
2. Assessment and Classification
Assessment and classification regarding
the specific needs of female prisoners
should be conducted to attain thetreatment programs responsive to theirneeds. The specific need areas include

426(ii) Vocational Programs
Vocational training programs suitablefor females are encouraged in regards tothe unemployment problem. It was also
found that female prisoners have been
abused or forced/introduced to commit
crime by male gangsters. It may be helpful
if the female prisoners can afford somevocational skills that enable them to findwork and avoid being abused by malegangsters.
(iii)Drug/Substance Abuse Prevention
ProgramMany female prisoners are drug/
substance abusers. To change their drug/
substance abusing behavior, correctional
institutions should provide drug/substanceabuse programs specially modified for
women prisoners. Different from programsfor men, programs for women need toemphasize the effect of drugs/substances
on a reproductive system, on an effect of
their association with male partners (ondrugs/substance abuse), on a constructive
use of leisure time, and on a building of
support systems.
(iv) V i c t i m s o f A b u s e P r o g r a m /Relationships Program
Women prisoners have a history of being
abused or forced/introduced to commit
crime by male partners. To help themrecover from trauma related to physical,
mental and emotional abuse, and to help

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
them reconstruct their relationships with
their male partners, special programs
should be provided. These should help
them recognize the destructive effects of
their relationships with intimate partners
and motivate them to change their way ofbuilding interpersonal relationships.
4. Establishing Health and Child
Care Services(i) Health Services
Recognizing that women have somespecific needs concerning their physicalhealth as is mentioned in Paragraph 23(1)of SMRs, it is necessary to provide themwith sufficient medical care, especiallygenealogical care. Firstly, female
prisoners, if pregnant, need to be takencare of according to their progress ofpregnancy, even after the delivery of theirchildren. Secondly, female prisoners, ingeneral, should get access to regularphysical checks (e.g. breast cancer checks,etc.).
(ii) Child Care Services
Most countries adopt the practice ofallowing the female prisoners to raise theirchildren in prison for a period of time,
which may range from 1 year to 3 years.
During this period, correctional
institutions are required to guarantee theaccess to milk diet, and other items
necessary to the development of children.
Further, it is desirable to establish anursery center for children within theprison compound or vicinity, as isrecommended in SMRs paragraph 23(2).
In cases where children become older than
the specific age and are looked after outside
the prisons, the prison authority is also
expected to pay extra attention to facilitate
the contact between imprisoned mothers
and their children. For example, in the
U.S., a center established within acorrectional institution provides activities,
mostly initiated by inmates, such as taperecording of mothers reading books;

summer camps (for children housed withneighborhood host families); and overnight
weekend visiting programs.
E. Conclusion
Female prisoners have been long
disadvantaged in prisons. However, in
accordance with the international society’s
emphasis on the improvement of situationsof women in general, the situations ofimprisoned women need to be focused on.
Female prisoners should be recognized ashaving specific needs, and “equality” needs
to be redefined as providing opportunities
relevant to their needs, not as providing
equal resources based the number of maleand female inmates. Our discussion is aneffort to step forward to this direction.
VI. GENERAL CONCLUSION
It is quite obvious that “Foreignprisoners”, “Drug-related prisoners” and“Female prisoners” all have specific needs
and require special treatment. The
correctional system of each country must
consider what necessary action can betaken. In some countries, there may belimitation of resources; but this must not
be an excuse for sitting back and doing
nothing. It is the intention of theparticipants of this group to motivate theconcerned systems to take actions that areappropriate and applicable to each country.
With available human resources, there canbe some effective and measurable changes.
We cannot change the world, but we canchange the part of the world where we are.

427

RESOURCE MATERIAL SERIES No. 57
ANNEX 1 (Foreign Prisoners)
Table 1
Trend of Belize
1996
1,544
492
31.9%

Number of Prisoners
Number of Foreign Prisoners
Rate of Foreign Prisoners

1997
1,389
446
32.1%

1998
1,193
397
33.3%

1999
1,313
451
34.3%

*Total number of admissions of each year

Table 2
Trend of Japan
Year
1989 1990 1991 1992 1993 1994 1995 1996 1997 1998
Number of
50,481 46,858 45,193 45,082 45,525 46,120 47,398 49,414 50,897 52,715
Prisoners
Number of
1,505 1,380 1,342 1,369 1,424 1,568 1,801 2,038 2,153 2,359
Foreign Prisoners
Rate of
3.0% 2.9% 3.0% 3.0% 3.1% 3.4% 3.8% 4.1% 4.2% 4.5%
Foreign Prisoners*As of 31 December of each year

Table 3
Trend of Sri Lanka
1993
18,6442
0.0%

Number of Prisoners
Number of Foreign Prisoners
Rate of Foreign Prisoners

1994
16,241
9
0.1%

1995
15,89326
0.2%* Total number of admissions of each year

Table 4
Trend of Thailand

Number of Prisoners
Number of Foreign Prisoners
Rate of Foreign Prisoners* As of 30 September of each year

428

1997
125,955
4,579
3.6%

1998
164,451
4,931
3.0%

1999
205,340
5,235
2.5%

2000
200,3105,526
2.8%

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Figure 1:
Number of Prisoners and Foreign Prisoners (Belize)
1,544

1,600

1,600
1,313

1,400

1,400

Number of Prisoners

1,193
1,200

1,200

1,000

1,000

800

800

600

600

492
446

451

397

400

400

200

200

Number of Foreign Prisoners

1,389

0

0
1996

1997

1998

Number of Prisoners

1999

Number of Foreign Prisoners

Figure 2
Number of Prisoners and Foreign Prisoners (Japan)
6,000

60,00050,481

Number of Prisoners

50,00046,85845,00047,398 49,414

50,8975,000

45,193 45,082 45,525 46,120

40,0004,000

35,00030,000

3,000
2,153

25,00020,0002,359

1,801 2,038
1,505 1,380

15,0002,000

1,342 1,369 1,424 1,568

10,000

Number of Foreign Prisoners

55,00052,715

1,000

5,000
0

0
1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

Year
Number of Prisoners

Number of Foreign Prisoners

429

RESOURCE MATERIAL SERIES No. 57
Figure 3
Number of Prisoners and Foreign Prisoners (Sri Lanka)
200

18,644

Number of Prisoners

18,000180

16,241

15,89316,000160

14,000140

12,000120

10,000

100

8,000

80

6,000

60

4,000
2,000

Number of Foreign Prisoners

20,000

40

26
9

20

2

0

0
1993

1994

Number of Prisoners

1995
Number of Foreign Prisoners

Figure 4
Number of Prisoners and Foreign Prisoners (Thailand)
250,000
205,340

200,310

Number of Prisoners

200,000

20,000164,451

150,000

15,000125,955

100,000

10,000
4,579

4,931

5,235

5,526

50,000

5,000

0

0
1997

1998

Number of Prisoners

430

1999

2000

Number of Foreign Prisoners

Number of Foreign Prisoners

25,000115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
ANNEX 2 (Drug-related Prisoners)
Table 1
Number of Drug Offenders
Belize127
12.5%(1999)

Japan
12,60529.1%(1998)

Peru
7,004
25.6%
(1999)

Sri Lanka
8,199
39.4%
(1998)

Thailand
67,473
58.6%(1999)

Table 2The Comparison of the Number of Drug Traffickers
and Drug Abusers among the Prison Population
BelizeThe number of Drug Traffickers are more than that ofnumber of Abusers
The number of Drug Traffickers
X
are almost the same as that ofnumber of Abusers
The number of Drug Traffickers are less than that ofnumber of Abusers• In Peru, drug abuse is not a crime.

Japan

Peru

Sri Lanka Thailand

X

X

X

X

Table 3
Types of Prevalent Drugs
BelizeCannabis
CocaineJapan
Amphetamines

Peru
CocaineSri Lanka
HeroinCannabis

ThailandAmphetamines
HeroinTable 4
Trends of Drug offenders
BelizeJapan
Increase
Increase
127
10,555 12,650
N.A. (1999) (1994) (1998)

Peru
Increase
4,727 7,004(1995) (1999)

Sri Lanka
Thailand
Increase
Increase
7,139 8,199 24,523 67,473(1997) (1998) (1995) (1999)

431

RESOURCE MATERIAL SERIES No. 57
ANNEX 3 (Female Prisoners)
Table 1: Number
Belize88
9.2%(1999)

Japan
1,199
5.2%
(1998)

Peru
2,353
8.6%
(1999)

Sri Lanka
5,441
6.3%
(1995)

Thailand
32,72015.9%(1999)

Sri Lanka
Increase
4,270 5,441(1994) (1995)

Thailand
Increase
6,401 19,235(1996) (1999)

Table 2
TrendsBelizeIncrease
88
N.A. (1999)

Japan
Increase
1,071 1,199(1996) (1998)

Peru
Increase
1,836 2,353(1996) (1999)

For Thailand, the number of convicted prisoners is only available.

Table 3
Institutions
Country

Belize

Japan

Peru

for female prisoners

0

6

8

0

6

Prisons with separate
wing for female prisoners

1

184

62

9

115

Institutions

Sri Lanka Thailand

Table 4
Type of Offense
4.1 Belize(1999)
Type of Offense
Drug related
Robbery /Theft
Assault
Illegal Entry
OthersTotal

432

Number
20
14
9
37
0
88

%
22.8
16.0
10.2
42.0
0.0
100

115TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
4.2 Japan (Convicted prisoners only)(1998)
Type of Offense
Drug related
Against property
Assault
MurderOthers
Total

Number
583
373
37
55
151
1,199

%
48.3
31.3
5.1
4.6
10.7
100

4.3 Sri Lanka (Convicted prisoners only)(1995)
Type of Offense
Drug relatedExcise Offense
Prostitution
MurderTheft
Others
Total

Number
47
203
135
5
68
65
523

%
9.0
38.8
25.8
0.1
13.0
12.3
100

Number
612
894
259
588
2,353

%
26.0
38.0
11.0
25.0
100

4.4 Peru(1999)
Type of Offense
Drug related
Against property, Assault
Murder, against life
OthersTotal

4.5 Thailand (Convicted prisoners only)(1999)
Type of Offense
Drug related
Against property
Assault
MurderOthers
Total

Number
4,604
13,314120308
889
19,235

%
23.9
69.2
0.6
1.6
4.6
100

433

RESOURCE MATERIAL SERIES No. 57
REFERENCES-

Lightfoot Lynn O. Offender Substance
Abuse Pre-Release Program.
Correctional Service Canada-

Carroll, Kathleen M. Therapy Manuals
for Drug Addiction -A CognitiveBehavioral Approach.
U.S.
Department of Health and Human
Services-

Jeremy, Travis. Women Offenders:
Programming Needs and Promising
Approaches. National Institute ofJustice/ U.S. Department of Justice-Amnesty International. United Statesof America “Not Part of My Sentence”
Violations of the Human Rights of
Wo m e n i n C u s t o d y. A m n e s t y
International

434

APPENDIXCOMMEMORATIVE PHOTOGRAPHS• 114th International Senior Seminar• 115th International Training Course

UNAFEI

THE 114th International Training Seminar

Left to Right:
Above:
Mr. Sirisak (V.E.)
4th Row:
Mr.Takagi (Chef), Ms. Takeda (Staff), Ms. Matsushita (Staff), Mr. Hirata (Staff), Mr.
Satou (Staff), Mr. Okeya (Staff), Mr. Gohda (Staff), Mr. Imai (Staff), Mr. Jimbo (Staff),
Mr. Wang (China), Mr, Tezuka (Staff)
3rd Row:
Ms. Saitou (Staff), Ms. Kubo (Staff), Mr.Suzuki (Japan), Mr. Sanada (Japan), Mr.
Afzal (Uzbekistan), Mr. Salahudin (Indonesia), Mr. Abdul Jalal (Malaysia), Mr.Jese(Fuji), Mr. EL Nabris (Palestine), Mr.Jumpol (Thailand), Mr.Kasingye (Uganda), Mr.
Datinguinoo (Philippines), Ms.Kaneda (JICA)
2nd Row:
Mr. Wakama (Nigeria), Mr. Lim (R.O.K), Mr. Yadav (India), Mr. Razzaque(Bangladesh), Ms.Ibañez (Peru), Mr. Mutlaq (Jordan), Mr. Jayathilake (Sri Lanka),
Mr. Pathak (Nepal), Mr. Usinskas (Lithuania), Mr. Farooq (Pakistan), Ms. Mirânjela(Brazil), Mr. Yoshiura (Japan), Mr. Tamura (Japan), Mr. Nishiguchi (Japan), Mr.
Yoshimatsu (Japan)
1st Row:
Ms. Findlay Debeck (L.A.), Mr. Itou (Staff), Prof. Watanabe, Prof. Nosaka, Prof. Aizawa,
Dep. Director Tauchi, Mr. Plachta (Poland), Mr. Nilsson (E.U.), Director Kitada, Mr.
Gaña (Philippines), Mrs. Gaña (Philippines), Mr. Harris (U.S.A), Prof. Iitsuka, Prof.
Satou, Prof. Tsutomi, Prof. Imafuku, Mr. Chishima (Staff)

THE 115th International Training Course

Left to Right:
Above:Mr. Cunha (CoE.), Dr. von Hofer (Sweden), Mr. Grant (Australia)
4rd Row:
Mr. Takagi (Chef), Mr. Souma (Staff), Ms. Takeda (Staff), Ms. Matsushita (Staff), Ms.
Saitou (Staff), Mr. Nozaki (Staff), Mr. Gohda (Staff), Mr. Nakagawa (Staff), Mr. Hirata(Staff), Ms. Kubo (Staff), Ms. Kuramochi (JICA), Ms. Kamitani (Staff), Mr. T.Kai(Staff), Mr. Kimura (Staff)
3nd Row:
Mr. Fujioka (Japan), Mr. Baba (Japan), Mr. Nakasato (Japan), Mr. Moody (Belize),
Mr. Regmi (Nepal), Mr. Negi (India), Mr. Rao (Pakistan), Mr. Terasaki (Japan), Mr.
Murillo (Costa Rica), Mr. Kuruppu (Sri Lanka), Mr. Yano (Japan)
2th Row:
Mr. Sakamoto (Japan), Mr. Kubo (Japan), Mr. Muhoro (Kenya), Mr. Omar (Malaysia),
Ms. Ota (Japan), Ms. Kobayashi (Japan), Ms. Sivakorn (Thailand), Ms. Davila (Peru),
Ms. Santamaria (Philippines), Mr. Yokoi (Japan), Mr. Tamani (Fiji), Mr. Adli
(Indonesia)
1st Row:
Mr. Miyamoto (Staff), Prof. Tsutomi, Prof. Tachi, Prof. Watanabe, Dep. Director Aizawa,
Mr. Somboon(Thailand), Director Kitada, Dr. Motiuk (Canada), Prof. Iitsuka, Prof.
Kakihara, Prof. Satou, Prof. Nosaka, Mr. Chishima (Staff)