Queston: IS THE USE OF NON-CUSTODIAL MEASURES IN THE ADMINISTRATION OF JUSTICE A HUMAN RIGHT?
We should take a look at the following international instrumens: United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), 1990; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985; and Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985.
The modern belief is that while imprisonment is necessary in many cases involving violent offenders, it does not constitute a panacea with regard either to crime prevention or to the social reintegration of offenders.
Moreover, in many countries prisons are overcrowded and outdated, with the result that prisoners often find themselves in deplorable conditions that can have adverse effects on their physical and mental health and impede their educational and vocational training, thereby affecting their chances of future adjustment to an ordinary life in the community.
The United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) emphasizes the importance of non-ustodial measures. It is also the spirit of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
The purpose of non-custodial measures is to find effective alternatives to imprisonment for offenders and to enable the authorities to adjust penal sanctions to the needs of the individual offender in a manner proportionate to the offence committed. The advantages of individualizing sentencing in this way are evident, given that it permits the offender to remain at liberty, thereby also enabling him or her to continue work, studies and family life.
Non-custodial measures can, however, be subjected to conditions and restrictions, the violation of which may in serious cases lead to imprisonment.
The Tokyo Rules encourage recourse to non-custodial measures and aim at guaranteeing a just application thereof based on respect for the human rights of the offenders. Non-custodial measures are of considerable potential value for offenders, as well as for the community, and can be an appropriate sanction for a whole range of offences and many types of offenders, and in particular for those who are not likely to repeat offences, those convicted of minor crimes and those needing medical, psychiatric or social help. In these cases, imprisonment cannot be considered an appropriate sanction, since it severs community ties and hinders reintegration into society and thereby also reduces offenders’ sense of responsibility and their ability to make their own decisions. On the other hand, non-custodial measures have the unique characteristic of making it possible to exercise control over an offender’s behaviour while allowing it to evolve under natural circumstances .
Rule 1.2 describes the further aim of promoting both “greater community involvement in the management of criminal justice, specifically in the treatment of offenders, as well as ... a sense of responsibility towards society” among offenders. Involvement of the community is essential in reintegrating the offender into society and may reduce the risk of stigmatization.
Mindful of the objectives of a criminal justice system and the balance that has to be struck between the different individual interests, Rule 1.4 provides that “when implementing the Rules, Member States shall endeavour to ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention”.
While emphasizing the promotion of non-custodial measures and the application of individualized penal sanctions, the Tokyo Rules consequently also fully support the general aim of the criminal justice system, which is to reduce crime and the need to recognize the important role of the victims of crime.
Lastly, according to Rule 1.5, “Member States shall develop non-custodial measures within their legal
systems to provide other options, thus reducing the use of imprisonment, and to rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender.”
The primary purpose of non-custodial alternatives to imprisonment is to enable penal sanctions to be individualized to the needs of the offender, thereby making the sanctions more effective. Non-custodial measures are also less expensive for society in general than deprivation of liberty. Individualized penal sanctions involving non-custodial measures must be considered in the light of the general aim of the criminal justice system, which is to reduce crime, and the need to recognize the needs and interests of the victims of crime.
As noted in subsection 2.2 above, the Tokyo Rules are applicable to “all persons subject to prosecution, trial or the execution of a sentence” (Rule 2.1). They can thus apply either to measures imposed on a convicted person as a penalty for an offence, or to suspects and defendants before their trial. Lastly, they cover measures which allow some part of a prison sentence to be served in the community and measures that reduce the length of imprisonment and substitute for it some form of supervision. The use of non-custodial measures instead of pre-trial detention is particularly to be encouraged, since pre-trial custody should be an exceptional measure in view of the suspect’s right to be presumed innocent.
According to Rule 2.2, the Tokyo Rules “shall be applied without any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status”.
While emphasizing the importance of “consistent sentencing”, Rule 2.3 promotes considerable flexibility in the development and use of non-custodial measures based on the following four criteria:
1. “the nature and gravity of the offence”;
2. “the personality and background of the offender”;
3. “the protection of society”; and
4. the avoidance of “unnecessary use of imprisonment”.
Rule 2.4 provides that “the development of new non-custodial measures should be encouraged and closely monitored and their use systematically evaluated”. The need for regular monitoring and systematic evaluation is particularly important given the flexibility inherent in non-custodial measures and in order to ascertain whether the objectives laid down in Rule 2.3 are met. From the viewpoint of a rational criminal justice policy, new non-custodial measures should be added only if accompanied by systematic evaluation enabling the authorities to measure their operational effectiveness. According to Rule 2.5, furthermore, “consideration shall be given to dealing with offenders in the community avoiding as far as possible resort to formal proceedings or trial by a court, in accordance with legal safeguards and the rule of law.” This rule is consistent with Rule 2.6 of the Tokyo Rules which provides that “non-custodial measures should be used in accordance with the principle of minimum intervention”. Whenever feasible, a trial should be avoided, both because it spares the suspect and his or her family from the negative consequences of formal sanctioning and because it eases the economic burden on society. The flexibility inherent in non-custodial measures implies that they can be used at any stage of the proceedings.
Non-custodial measures must be applied fairly and objectively; they must not involve discrimination. Differences in treatment are lawful only if they have a reasonable and objective justification. Authorities must ensure consistent sentencing when resorting to non-custodial measures. Non-custodial measures should be used in accordance with the principle of minimum intervention; all excessive measures must be avoided. When resorting to non-custodial measures, the competent authorities must consider:
1. the nature and gravity of the offence;
2. the personality and background of the offender;
3. the protection of society (the prevention of crime); and
4. the avoidance of unnecessary use of imprisonment.
The requirement of consent of the offender to the imposition of non-custodial measures is an important precondition for its success, and, according to Rule 3.4, such consent is obligatory with regard to non-custodial measures “applied before or instead of formal proceedings or trial”. Consequently, the requirement of consent is a particular safeguard relating to persons accused but not yet tried or convicted.
Furthermore, the accused should be informed about the potential consequences of refusing to consent to non-custodial measures, and any indirect pressure on the accused to consent to the measures should be avoided.
Lastly, a refusal to consent to the imposition of a non-custodial measure should not adversely affect the accused’s position in any way. The requirement of consent to diversionary measures is also contained in Rule 11.3 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules). In that context, it is either “the juvenile, or her or his parents or guardian” who must give consent to the recommended diversionary measure.
Rule 3.5 stipulates that “decisions on the imposition of non-custodial measures shall be subject to review by a judicial or other competent independent authority, upon application by the offender”. This right of appeal is an additional safeguard against arbitrary decisions. In order for this safeguard to be truly effective, the offender must be informed of this right.
Rule 3.8 prohibits non-custodial measures involving “medical or psychological experimentation on, or undue risk of physical or mental injury to, the offender”. In any event, non-custodial measures may not, of course, violate the legally binding rules existing in international human rights law, such as the right to freedom from inhuman or degrading treatment or punishment (cf. inter alia art. 7 of the International Covenant on Civil and Political Rights and the saving clause contained in Rule 4.1 of the Tokyo Rules).
In the implementation of non-custodial measures, the offender’s rights shall not be restricted further than was authorized by the competent authority that rendered the original decision (Rule 3.10). This is a rule based on the principle of legality: any interference with a person’s rights must be based on law, and no further restrictions can be imposed without a decision taken by a duly authorized authority acting in accordance with the law.
In the application of non-custodial measures, the offender’s right to privacy shall be respected, as shall be the right to privacy of the offender’s family” (Rule 3.11).
Lastly, the right to dignity and the right to respect for the offender’s privacy are also protected by Rule 3.12, according to which “the offender’s personal records shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the offender’s case or to other duly authorized persons.”
Offenders and their families are entitled to know that personal information about them will not be made public and will not be used to hinder their chances of social reintegration. It is therefore also important to keep the records in a safe place, and consideration should be given to the desirability of destroying them after a reasonable period.
Non-custodial measures can be resorted to at any stage of the judicial proceedings, whether at the pre-trial, trial and sentencing or post-sentencing stages. They therefore constitute important and flexible tools in choosing the sanctions most likely to have a beneficial impact on the offender in the form of his or her reintegration into the community as a law-abiding citizen.
The possibility of resorting to non-custodial measures at the pre-trial stage is regulated in the following terms by Rule 5.1 of the Tokyo Rules:
“Where appropriate and compatible with the legal system, the police, the prosecution service or other agencies dealing with criminal cases should be empowered to discharge the offender if they consider that it is not necessary to proceed with the case for the protection of society, crime prevention or the promotion of respect for the law and the rights of victims. For the purpose of deciding upon the appropriateness of discharge or determination of proceedings, a set of established criteria shall be developed within each legal system. For minor cases the prosecutor may impose suitable non-custodial measures, as appropriate.”
Discharging the offender even before formal action has been taken is the earliest possible non-custodial measure in the pre-trial stage, but it is conditioned by the protection of society; crime prevention; the promotion of respect for the law; and the rights of victims.
As to the sentencing stage, the Tokyo Rules provide for a range of non-custodial measures which the judicial authorities “may” use, although in doing so, they “should take into consideration ... the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate” (Rules 8.1 and 8.2).
According to Rule 8.2 (a) to (m), the sentencing authorities may dispose of cases in the following ways: verbal sanctions, such as admonition, reprimand and warning; conditional discharge; status penalties; economic sanctions and monetary penalties, such as fines and day-fines; confiscation or an expropriation order; restitution to the victim or a compensation order; suspended or deferred sentence; probation and judicial supervision; a community service order; referral to an attendance centre; house arrest; any other mode of non-institutional treatment; or, some combination of these measures.
Just as the offender’s personal needs and interests have to be weighed against society’s interests at the pre-trial stage, so the offender’s “rehabilitative needs” at thesentencing stage must be balanced against the need to protect society and “the interests of the victim”.
The participation of the victim in the proceedings is also encouraged by Principle 6(b) of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which was adopted by the United Nations General Assembly in 1985.
According to this principle, “the responsiveness of judicial and administrative processes to the needs of victims should be facilitated by ... allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.”
Rule 9.1 of the Tokyo Rules provides that “the competent authority shall have at its disposal a wide range of post-sentencing alternatives in order to avoid institutionalization and to assist offenders in their early reintegration into society.” This rule is based on the principle that reducing the length of imprisonment can reduce the risk of offenders becoming institutionalized and thus unable to cope with society once they have been released. Consequently, it can be of advantage to grant offenders early release, while subjecting them, if necessary, to supervision. Rule 9.4 also promotes the idea of releasing offenders from an institution to a non-custodial programme at the earliest possible stage. Rule 9.2 enumerates the following post-sentencing dispositions: furlough and half-way houses; work or education release; various forms of parole; remission; pardon.
Some of these measures are substitutes for imprisonment. The offender is still under the authority of the prison administration but spends his or her days outside the prison working or undergoing training. The advantage of such an arrangement is that he or she can earn money that can be used to help meet family commitments, or saved to assist with reintegration upon release. In a half-way house, the offender is still technically under the supervision of the prison authorities but lives in “semi-freedom”, readjusting to life in the community.
In fine, non-custodial measures are a legal field that is far from having been fully explored, but which has important potential from which both the community and offenders could benefit.
Source: Univ. of Minnesota Human Rights Library
Digested by:
Atty. Manuel J. Laserna Jr.
