OFFICE OF THE SPECIAL COORDINATOR IN THE OCCUPIED TERRITORIES
Rule of Law Development in the West Bank and Gaza Strip
Survey and State of the Development Effort
Key to this effort are a number of areas which play a crucial role in rule of law development: there must be a constitution or basic law which incorporates internationally-recognized human rights, which empowers an independent judiciary, defines and limits the powers of government, and outlaws discrimination and protects minorities. A government based on the rule of law also demands the establishment and maintenance of a strong and fair electoral system, and the creation of a broad framework of laws and policies which protect human rights, fundamental freedoms and democracy. The judiciary must be strong, and a comprehensive regime must be developed for the training of lawyers, judges, prosecutors, police and prison officials.
To help secure the development of these crucial areas which are aimed at protecting basic human rights and fundamental freedoms, the United Nations has developed a framework for strengthening the rule of law. It is this framework which is helping to guide the development of Palestinian society and the young but progressing Palestinian legal system. The Palestinian Authority (PA) has firmly committed itself, through peace agreements and public statements, to building a society based on the rule of law.
The Palestinian Authority – through the Core Group on the Rule of Law – has created a strategic framework and development scheme aimed at strengthening each of these areas. My office was pleased to play a role in the development of this framework. Over the short span since the broad development effort began – and the much shorter span since concentrated focus on the rule of law domain began – the PA, donor countries, international agencies, non-governmental organizations, and other partners have come together to address some of the many needs in the rule of law sector.
This document – the Survey and State of Rule of Law Development in the West Bank and Gaza Strip – complements the development effort by tracking the progress of rule of law-related activities and projects of the many different partners involved. The document – the creation of which was the result of numerous consultations with representatives of donor governments, United Nations agencies and programs, non-governmental organizations, lawyers, judges, and other officials in institutions involved in development of the Palestinian legal system – also highlights the more pressing needs within the rule of law sector.
By providing this global picture, the Survey allows development partners to take advantage of expertise used in other projects, to avoid the creation of duplicative projects, and to more accurately target areas of greatest need within the sub-sector, all contributing to a greater level of coordinated effort.
We are grateful for the Government of Norway’s past and continued support to UNSCO’s work in the rule of law sector. We are equally thankful to donor governments, the PA, and non-governmental organizations, as well as the United Nations family of agencies and programs, for the information and cooperation they provided to make this Survey possible, and for their past and ongoing commitment to the development of the rule of law.
State of the Development Effort
TABLE OF CONTENTS
AILR/ALRI Australian International Legal Resources / now Australian Legal Resources International
ARD Associates in Rural Development, Inc.
AUSAID Australian Agency for International Development
CIDA Canadian International Development Agency
DANIDA Danish International Development Agency
DFID Department for International Development (UK)
ECTAO European Commission Technical Assistance Office
EU European Union
FAO Food and Agriculture Organization of the United Nations
GBCGD Global Bureau Centre for Governance and Democracy
ICJ International Commission of Jurists
ILO International Labor Organization
IPCRI Israeli-Palestinian Centre for Research and Information
ISDLS Institute for the Study and Development of Legal Systems
MOI Ministry of Interior
MOJ Ministry of Justice
MOPIC Ministry of Planning and International Cooperation
NDI National Democratic Institute
NGO Non-Governmental Organization
NSPC National Secretariat for the Palestinian Child
OHCHR Office of the United Nations High Commissioner for Human Rights
PA Palestinian Authority
PICCR Palestinian Independent Commission for Citizens’ Rights
PLC Palestinian Legislative Council
SDC Swiss Agency for Development and Cooperation
SIDA Swedish International Development Agency
TBD To be determined
UK United Kingdom
UN United Nations
UNCTAD United Nations Conference on Trade and Development
UNDCP United Nations Drug Control Programme
UNDP United Nations Development Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNICEF United Nations Children’s Fund
UNIFEM United Nations Development Fund for Women
UNRWA United Nations Relief and Works Agency
UNSCO United Nations Special Coordinator in the Occupied Territories
UNV United Nations Volunteers
USAID United States Agency for International Development
USIS United States Information Service
VFTCHR United Nations Voluntary Fund for Technical Cooperation in the Field of Human Rights
WIPO World Intellectual Property Organization
WTO World Trade Organization
A. Executive Summary
This document is the second in a series of surveys aimed at assessing progress in rule of law development in the West Bank and Gaza Strip, an area that has been the focus of steadily increasing attention of the international community. It has been released in the wake of the publication of the annual multi-year Palestinian Development Plan (1999-2003).
This document reports on the activities being carried out in support of the rule of law sector, presenting data available as of 28 February 1999. The data has been collected through a comprehensive survey of donors and United Nations agencies and programmes involved in the rule of law development effort. The results of the survey are set out in detail in Annex One. In addition, information was gathered through direct and numerous consultations with representatives of the Palestinian Authority and of Palestinian legal institutions, including representatives of the Ministry of Justice, members of the judiciary, prosecutors, lawyers, law enforcement officials, legislators and NGO representatives, among others. Some of the more pressing needs expressed by these representatives and officials are summarized in Annex Two.
The total amount of donor and agency funds thus far committed to the rule of law sector, including completed, ongoing and pending projects, is US$100,725,612. In all, some 322 activities are reported upon, more than doubling the 152 activities registered in the previous Survey in July 1997. Of these 322 activities, 141 are completed, 146 are ongoing and 35 are pending. (See Annex Three).
Of the total committed support for the sector, 24.8% is in the form of technical assistance, 16.8% as financial assistance, 13.7% in training and education, and 5.6% is in the form of provision of equipment, furniture and materials. The remaining 39.1% is in the form of multiple types (or “ mixed” forms) of assistance. (See Annex Four)
Twenty-four donors and thirteen United Nations agencies and programmes, along with numerous independent international and Palestinian NGOs, currently support the rule of law sector. Each of these development partners are working with the Executive branch, through, inter alia , the Ministries of Interior, Justice, Planning and International Cooperation and Local Government; with the Judiciary, through Palestinian judges at all levels and with court staff; with the Legislative branch, through the Palestinian Legislative Council; with the Palestinian Independent Commission for Citizens’ Rights; and with civil society, through the many Palestinian NGOs present in the West Bank and Gaza Strip.
Support for the rule of law sector is broken down into fifteen key, but inter-dependent “development points”. These are: the Ministry of Justice; the judicial system; the prosecutorial system; professional legal practice and legal education; law enforcement; penal institutions; rule of law policy development; non-governmental organization capacity; independent national human rights institution capacity; legislative council capacity; law reform; forensic science capacity; the electoral system; conflict resolution capacity; and human rights and public information development. (See Annexes Five and Seven)
Of the fifteen development areas, donors commitments to date have been allocated to the following: non-governmental organizations (16.7%); the Palestinian Legislative Council (15.0%); law enforcement (14.4%); the judiciary (14.0%); electoral system development (10.2%); human rights education and public information development (7.5%); and professional legal practice and legal education (5.1%).
Some assistance has also been provided to the sub-sectors on policy development (4.9%), law reform (4.4%), Ministry of Justice capacity development (2.2%); the Palestinian Independent Commission for Citizen’s Rights (1.7%); forensic science capacity development (1.5%); and conflict resolution mechanisms (1.4%). All other development areas received less than one percent of the overall committed assistance to the sector. The lowest level of support registered for any one development area was that committed to the sub-sector for prosecutorial development. (See Annex Six)
Much of the support for the rule of law sector continues to address the many different challenges faced by the Palestinian legal system, including the challenges of: overcoming the decades of institutional neglect arising from Israeli occupation; rendering some consistency to outdated and often conflicting laws; providing comprehensive and standardized training (including human rights training) to law enforcement officials, legislative staff, members of judiciary, prosecutors and others in the legal profession; and creating a physical infrastructure for the legal system.
To this end, the Palestinian Authority has responded positively, creating a Rule of Law Strategic Development Plan and seeking to identify and prioritize needs within each of the sub-sectors of the rule of law domain. The Palestinian Authority also has created a rule of law core group to focus specifically on the continuing needs in this sector, to develop and propose plans of actions to address these needs, and to monitor progress made.
This survey is meant to complement those efforts, to provide a broad picture of the progress made, and to provide some degree of specificity of the ongoing needs within each of the sub-sectors of the rule of law domain.
In terms of progress made, the Ministry of Justice has received support in the provision of much-needed technical and training assistance, as well as some material assistance. Much training in the field of human rights has been provided to law enforcement officials, and additional training is anticipated for members of the judiciary, as well as for prosecutors and other members of the legal profession.
Some national plans of action (e.g., for Children, for Human Rights) have either been initiated or are anticipated. NGOs, as well as the Palestinian Independent Commission for Citizen’s Rights, have received much-needed support from the international community.
The Palestinian Legislative Council has been the recipient of training for a number of its staff, has received equipment and other materials, and has been supported, among other areas, in the form of funding for the review of legislation and for educational visits of legislators to other countries. Extensive support also has been provided to the initial elections and to the law reform effort, in the compilation of old laws, and the drafting of new legislation, and this has been bolstered by the creation and ongoing development of a legal database. Some support has also reached the forensic science and conflict resolution domains of the rule of law sector.
Finally, 1998 saw the opening of the new Institute of Law at Birzeit University which will surely play a long-term role in educating legal professionals in the WBGS.
Despite these gains, the demand and needs in the rule of law domain still far outweigh the supply, and the sector needs a reinforced level of assistance. If Palestinians are to be governed through a system that secures and maintains the rights of all, and if other forms of economic and social assistance are to have sustainability, a higher degree of focus and support is needed on rule of law development.
In particular, the judiciary needs more support, in terms of physical infrastructure and training, as well as the ability to rely on a competent and fully functioning alternative dispute resolution system to reduce the number of court cases. The prosecutorial system presently has an under-resourced operational capacity in light of its heavy caseload, and is unable to rely on a fully operational forensic science capacity, which is key to evidentiary soundness, efficient prosecution, and ensuring a fair defense. Support for penal institution capacity, including rehabilitation-oriented programmes, remains almost non-existent.
The effectiveness of law enforcement will depend on continued technical, financial, infrastructural and organizational support. Such support will be central to ensuring that law enforcement officials carry out their roles effectively, pursuant to international standards of conduct, and with respect for human rights. Law reform and the legal database, although having made some progress, are areas on which the future of the Palestinian legal system will depend heavily, and a reinforced effort is needed here. The state of rule of law-related policies (e.g., national plans of action), and the equally important mechanisms to implement them, remain substantially under-developed.
Non-governmental organizations, and the Palestinian Independent Commission for Citizens’ Rights, both vital to expressing the needs and concerns of all Palestinians, will need continued support to address those needs, and to aid the Palestinian Authority in addressing those needs.
Finally, renewed support for the electoral system is needed to ensure the proper development of a democratic system.
While the international community has provided much support for this sector, the need remains great. Continued and reinforced support for the rule of law is key to the overall sustainability of the development effort.
It has now been over five years since the signing of the Declaration of Principles in September 1993. Since then, a substantial amount of support – some US$2.5 billion dollars – has been disbursed for economic and social development in the West Bank and Gaza Strip (WBGS). Although not initially the main focus of support, the rule of law domain has come to be recognized as a foundation of the development effort. Donors and implementing agencies have steadily placed greater emphasis on the importance of this domain in the development effort, 1 as this sector is now widely seen as key to the sustainability of many other forms of assistance.
Much of the initial effort in this sector focused on needs assessments and reviews of the current state of affairs in the rule of law domain. 2 The value of the efforts by the international community, in coordination with the Palestinian Authority, NGOs, 3 and legal professionals, in conducting the preliminary needs assessments, legal studies and analyses should not be understated. Such assessments have been crucial to identifying those areas within the rule of law domain which need support, and in charting the course for rule of law development in the WBGS. The process of needs assessments is, to a lesser degree, still ongoing, focusing on more specific areas. 4
In the last three years, the attention steadily moved into the implementation phase. Initial efforts in the implementation phase focused on strengthening electoral capacity, reinforcing the work of NGOs, establishing and supporting policy development and legal reform mechanisms, as well as supporting efforts in the field of human rights, among other areas. The support provided to these areas was badly needed and significant progress has been made.
A substantial amount of financial, technical and material support for NGOs – human rights and others – came from many different sources, and this has unquestionably strengthened the capacity of the NGOs concerned.
Of the support aimed at legal reform, much focus has been on the compilation of existing laws -- from different origins -- applicable in the WBGS. Additional support has been targeted at the creation of an operational capacity to develop new and comprehensive legislation. Training of the police and other officials in human rights standards commenced during this period, and is ongoing. Nonetheless, the areas which have received the bulk of support still remain in great need, and continued support to these areas will have a determining impact upon the long-term effectiveness of the rule of law in the WBGS.
Other areas, no less important, within the rule of law sector received either a relatively small amount of, or no, support during the initial five-year period. These include the judiciary, penal institutions, and professional legal practice, as well as the legal system’s physical infrastructure. 5 Support for these areas – in particular the judiciary -- is critical for the long-term sustainability of the rule of law. Some of that much needed support for these latter areas is anticipated, as donors and implementing agencies continue to intensify their focus on rule of law development. 6
In this respect, the present Survey is designed to enhance the development effort by providing the international community and other rule of law partners with a broad, but concise, view of the state of rule of law development in the WBGS.7 The survey is not designed to be comprehensive. Rather, it highlights some of the work that has been completed, that which is ongoing, and that which is anticipated within each of the different development sub-areas of the rule of law domain.
The survey has also sought, through consultations with a number of relevant officials working within rule of law institutions, to identify specific areas (although not an exhaustive list) in which the international community may wish to focus future support within the sector, consistent with the Ministry of Justice’s Rule of Law Strategic Development Plan. 8
The rule of law domain is now recognized as a centerpiece for the development process. As that process has now fully entered the implementation phase, and as attention to and support for this domain continues to grow, it has become ever more crucial to coordinate this aspect of the development effort, to monitor the progress made, and to identify those areas which, as indicated by the key officials within each rule of law institution, need continued support.
C. A Brief Legal History, and Principal Challenges Ahead
Many of the partners involved in rule of law development have come to appreciate the significant challenges facing the Palestinian legal system, a unique and fractured system handicapped by, among other factors, decades of institutional neglect. The many studies and needs assessment missions conducted in the initial years of the development effort revealed the depth of the impact created by Israeli occupation upon the Palestinian legal system. This, coupled with the fact that many of the laws derive from a variety of different legal systems (British, Egyptian, Jordanian, Israeli, and even Ottoman), has produced a multi-layered system of often conflicting laws.
The confusing mass of laws inherited by the Palestinians was described in a study by Mr. Frederick Russillo: 9
The state of the law is an additional area of the overall legal system constituting a hurdle to its reconstruction. Several different philosophical and doctrinal traditions now coexist uneasily in the occupied Palestinian territories (OPTs), including [the] West Bank, Jericho and Gaza.
On the West Bank, the legal tradition is one of Jordanian law and British emergency decrees, interwoven with that of the occupying power (Israel) and its system of over 1,200 military orders as administered by the Office of the Military Governor. The autonomous areas, in contrast, presently functioning within the rubric of the Declaration of Principles (DOP), preserve the amalgam of differing coexisting legal traditions in both Jericho and the Gaza Strip, along with the extant military orders.
The source of law in Jericho, similar to that of the remainder of the West Bank, is Jordanian; that of the Gaza Strip is Egyptian in orientation, borrowing heavily from the Ottoman era [sic] and English common law. In all three areas, due to the stultifying impacts of the nearly 30-year occupation, the growth of the law stopped effectively in 1967, and remains frozen on all doctrinal and philosophical fronts as of that date.
In essence, the Palestinian Authority inherited a system which was decades old, and burdened with an incompatible mix of different legal systems. Compounding the problem were the decades of neglect of the aging physical infrastructure, lacking the most basic equipment. Further complicating matters were the lack of a standardized curriculum for legal and judicial training, and long-time territorial separation of those legal professionals in the West Bank from those in the Gaza Strip.
Set out in greater detail in Annex Nine is a chronology of the major phases, transitions and influences which led to today’s complex Palestinian legal framework. Among the more significant phases were the establishment, beginning in the early 16th century, of Ottoman laws and the Ottoman legal system, the incorporation of a European-style legal system in the mid-19th century, the implementation of British-based laws beginning in 1917, and the geographical fracturing of the legal system in 1948. This was followed, from 1948 to 1967, by the side-by-side development of two separate legal systems, one in the West Bank and one in the Gaza Strip, followed in 1967 by the Israeli occupation, during which military orders effected change to nearly every law and legal structure.
With the birth of the Oslo Accords in 1993, and the Interim Agreement in May 1994, the long and difficult effort to harmonize outdated and conflicting laws, and to create a single legal system based on the rule of law began. A number of major challenges stood – and still stand – in the path of that effort.
The judiciary remains hampered by a poor physical infrastructure, few means to convey its decisions to the legal community, and a lack of institutionalized training. The prosecutorial system, like the judiciary, remains understaffed. It also lacks some of the most basic materials and facilities to carry out its functions, including the ability to apply modern criminal law 10 and a developed and reliable forensic science capacity. Penal institutions also suffer from a poor physical infrastructure, lack basic materials and, as is the case for the police, lack comprehensive standardized training which incorporates international standards.
As long as the law reform effort must continue to work to harmonize old and develop new legislation, the legal profession will continue to rely on outdated laws. Finally, and perhaps most important, broad support is needed to ensure continued development of a culture of respect for human rights, not only within governmental institutions, but within public consciousness. These represent only some of the major substantive challenges ahead for the rule of law in the WBGS.
There are political challenges as well. These challenges, not a subject of discussion for the present survey, may dictate when, where and perhaps even how, the Palestinian legal system will be applied, and they only add to the complexity of the present phase. Thus, the current period represents a critical juncture in the long-term development of the legal system and rule of law in the WBGS.
Notwithstanding the many challenges facing the legal system, the last five years have seen significant progress as a result of the planning efforts of the Palestinian Authority, the interventions and support of the international community, and the dedication of many NGOs, legal professionals and other members of Palestinian society.
Many activities aimed at implementing the Palestinian Development Plan and the Ministry of Justice Rule of Law Strategic Development Plan have either been completed, are now ongoing, or are anticipated in the near future. Still, a significant amount of development in this sector remains to be done.
D. Plans and Priorities of the Palestinian Authority
The Palestinian Development Plan (1999-2003) includes in its overall strategy the following:
The strategy also aims at laying the ground [work] for good governance based on democracy, accountability, transparency and human rights so as to build a Palestinian modern civil society run by efficient institutions based on the rule of law. 15
Among the prominent plans to implement this strategy is the Ministry of Justice’s Rule of Law Strategic Development Plan, 16 which sets out the major priorities to be addressed in rule of law development. These include: unification of existing laws governing the West Bank and Gaza Strip, improvement of court buildings and facilities, unification of judicial systems and procedures, standardization of prosecution procedures and improvement of prosecution office buildings and facilities, development of a computerized legal and judicial database, and development of an independent forensic science capacity. 17
The Palestinian Authority Rule of Law Core Group has set out specific categories to ensure that the objectives of Rule of Law Strategic Development Plan are met. The Core Group is currently developing (or in some cases has already developed) proposals under each of development areas of the rule of law sector, to provide donors and implementing agencies with estimated costs, timelines and other relevant information on these areas of need, and to facilitate, through the Palestinian Development Plan (1999-2003), the funding and implementation of projects in the rule of law sector.18
Thus far, plans of action which have arisen out the Ministry’s pursuit of its Rule of Law Strategic Development Plan include a national plan of action for human rights in cooperation with the Office of the High Commissioner for Human Rights and with funding from Norway, 19 and a national plan of action for children in cooperation with UNICEF, with funding from Sweden and Spain.
In addition, the Ministry of Planning and International Cooperation (MOPIC) – with the funding and support of the Netherlands – has committed itself to the creation of a gender planning and development directorate within the ministry. The Palestinian Authority has also indicated its support for the development, in cooperation with the United Nations Drug Control Programme (UNDCP), of a national inter-ministerial approach to drug control.
Among the priorities most often repeated were the needs for improvement of the physical infrastructure of the legal system, support for the judiciary, training of staff throughout each institution, further development of an operational capacity within each legal institution, and continued support for law reform.
Many officials, particularly within the Ministry of Justice, the judiciary and the prosecutorial system, continue to emphasize the importance of and need for building the physical infrastructure, particularly for the courts and for the office of the Attorney General. A number of NGOs, as well as the Palestinian Independent Commission for Citizens’ Rights, continue to express concern over the weakness of the judiciary. 20 Support for this area of the rule of law is paramount among many officials and legal professionals. Throughout the many consultations undertaken during the survey, officials continually requested training and further development of the technical capacity of their staff.
Although many officials welcomed the positive developments in the area of law reform, namely the consolidation, with the support of the World Bank, of all previously applicable laws in the WBGS, they noted the strong need for expediting the drafting and passage of new laws which are comprehensive and which harmonize currently conflicting laws.
Finally, one area which has not received much focus is enhancing the relations among those institutions more heavily involved in the development of the rule of law. A number of officials expressed their desire to see international support for projects which support inter-ministerial and other coordination mechanisms.
These represent only some of the priorities mentioned by a number of officials within the rule of law institutions. More detailed needs are set out in the following discussion.
E. The Development Areas of the Rule of Law Domain
This Survey is organized around fifteen separate areas which make up the building blocks for effective rule of law development. 21 Their identification is the product of consultations with Palestinian Authority representatives, Palestinian legal professionals, donors and relevant agencies, and a review of the various needs assessments, project documents, studies and plans produced thus far. It should be noted that the development areas effectively mirror the rule of law components identified by the Secretary General of the United Nations in the Framework for the Rule of Law , annexed to his report on the subject to the forty-ninth session of the General Assembly. 22
The fifteen development points include: (1) Ministry of Justice Capacity Development; (2) Judicial System Development; (3) Prosecutorial System Development; (4) Legal Practice Development; (5) Law Enforcement Development; (6) Penal Institution Development; (7) National Human Rights / Rule of Law Policy Development; (8) Non-Governmental Organization Development; (9) Independent National Human Rights Institution Development; (10) Legislative Council Capacity Development; (11) Law Reform Development; (12) Forensic Science Capacity Development; (13) Electoral System Development; (14) Conflict Resolution Capacity Development; and (15) Human Rights and Public Information Development.
While alternative frameworks, and various approaches to categorization could certainly be conceived, this particular formulation has the benefit of conciseness and relative comprehensiveness, and is divided moreso by activities or objectives, rather than by donors or ministries. As the rule of law sector cuts across various ministries, involves both official institutions and independent actors, and includes all three branches of government, as well as civil society, the present approach has been opted for as most appropriate. 23
Law commissions have carried out some amount of work, finishing first drafts of legislation on civil procedure, criminal procedure, rental laws, and arbitration, but the work has been very slow, taking up to six to twelve months (and sometimes longer) to create the first draft of each piece of legislation. The remainder of the legislating process, up until passage and publication of the law, can often take up to another year or longer. This coupled with the fact that only a small number of pieces of legislation are becoming law every year, suggests that more support is needed to bolster the Ministry of Justice’s efforts to create and seek passage of key legislation. For progress on some specific pieces of legislation, see Annex Eight.
New commissions have commenced work on two other pieces of draft legislation related to the organization of courts, and the execution of court judgements. Due to lack of resources, primarily a shortage of experts at drafting legislation in Arabic, no other commissions are expected to be created in the near future. The speed of the commission process would likely be improved by (1) the provision of a permanent secretariat for the law commissions, and (2) the provision of additional legislative drafting experts to the Ministry of Justice.
With the arrival in January 1999 of an additional estimated 230 books, the Ministry’s library now holds an estimated 1,000 legal publications, some in Arabic, some in English, and some touching on the nature of the Ministry’s work.
The Ministry of Justice is the recipient of 2.2% of the total committed assistance for the sector. Exclusive of other related activities identified below, the survey has received reports of a total of eight activities targeted for the further development of the Ministry of Justice, totaling US$2,217,580. Of these activities, 50% are dedicated to technical assistance, 12.5% to training, with the remaining 37.5% in mixed form. 26 Three of the activities are now reported as completed, with another four still ongoing, and one activity pending implementation.
In 1998 and 1999 especially, emphasis has been on the further development of the legislative-drafting capacity of the Ministry. 27 With assistance from the international community, notably Norway, USAID, Australia and the OHCHR, the capacity of the Ministry has improved. UNSCO also has provided technical advice and materials to the Ministry of Justice, to aid in the development of strategies and in identifying areas that may need the most urgent attention.
Despite this support, much more is needed, in particular in the following areas:28
2. The Judicial System , which must be capable of extending the protection of the law to all citizens, 33 is among the most in need of support of all the fifteen development areas. The judicial system still is in great need of physical structures (building of new, and rehabilitation of old), 34 has no central training institute, is insufficient in terms of library resources, and has no ongoing consistent capacity to compile and publish important court decisions to guide the development of Palestinian law. Equally significant is the underdeveloped court administration system. Technical staff, including court clerks and researchers, process servers and court managers are needed 35 and, like members of the judiciary itself, are in need of expert training.
As of 27 January 1999, the judiciary comprised 65 judges, 30 in the Gaza Strip and 35 in the West Bank. 36 Currently, 12 judges sit on the High Court, 37 nine of whom are based in the Gaza Strip, 38 with the remaining three in the West Bank. 39 Another 21 judges preside over cases in the two district courts and six magistrate courts in the Gaza Strip, while 32 judges preside over similar cases in the West Bank. 40 In the Gaza Strip, for example, more than 75,000 cases were processed in Magistrate (or trial level) courts in 1998 – an estimated 61,000 criminal cases and 14,000 civil cases. 41 Members of the judiciary regularly complain about the low number of judges in proportion to the number of cases. 42
The library of the High Court in Gaza, the largest of all of the judiciary’ ;s libraries, holds an estimated 1,000 publications that could be considered of use to the High Court. 43
The judicial system still needs support to establish a functioning Judicial Council, and also needs a Chief Justice for the High Court. Judicial salaries also remain a concern. 44
Consultations with Palestinian judges, including High Court Judges, and other officials reveal continuing concerns about the severe backlog of cases throughout the system, the lack of training of police and officials from other institutions in the primacy of the judiciary to interpret the law, and the absolute obligation to apply and enforce decisions of the courts. 45
Although the detailed strategy of the Palestinian Authority for the judicial system includes plans for the improvement of court buildings and facilities, 46 and for the unification of judicial systems and procedures, 47 these areas have not yet received the support they need. 48 Of particular note, however, is the fact that legislation governing the judiciary has recently been passed by the Palestinian Legislative Council, and is expected to be signed into law soon. 49 Additional concerns about the regulatory framework of the judiciary include the need to create a code of ethical standards, 50 and to support legislation establishing the Judicial Council.
There has been some degree of support for the judiciary from the international community, including the World Bank, USAID, Norway, UNDCP and the OHCHR. Indeed, some training of members of the judiciary was scheduled to commence in April or May 1999 at Birzeit University’s new Institute of Law.
The judiciary is the recipient of 14.0% of the assistance committed for the sector.51 The Survey has recorded ten activities targeted to judicial development, for a total amount of US$14,110,839. By activity, 40.0% of the committed assistance is in the form of training, with the remaining 60.0% in mixed form. Of the activities reported, one is completed, three are ongoing, and six are pending.
Among the more pressing needs to be addressed in this development area are:
As of January 1999, the Attorney General’s office employed 46 prosecutors, 26 based in the Gaza Strip and 20 in the West Bank. 55 In 1997, the Attorney General’s office handled an estimated criminal 66,215 cases; in 1998, that number increased dramatically to 216,263. 56 The office also defended 115 cases against government entities in 1997, and 148 such cases in 1998. 57 The offices of the Attorney General (including nine separate offices in the Gaza Strip alone) are small and inadequate to support the number of staff needed to deal with the extensive caseload. 58 No support has yet been registered for improving the physical infrastructure of these offices.
The acting Attorney General has stated that the work can be effectively carried out with the addition of 20 trained prosecutors each in both the Gaza Strip and the West Bank. 59
With the exception of several books dating back to the British Mandate era, there is no legal library in the Attorney General’s offices. 60 The Palestinian Authority, through the Ministry of Justice, has established a plan for the standardization of prosecutorial procedures and the improvement of prosecution buildings and facilities, 61 although funding for its full implementation has not yet been secured. Only recently has some support for the prosecutorial system been made available, including support from Germany (through the Konrad Adenauer Foundation), Norway, the OHCHR, UNDCP and Birzeit University Institute of Law.
Having been, in the previous Survey, the only development area which had not yet received support, the prosecutorial system is now registered as receiving some assistance.
However, in terms of support, this sub-sector still ranks last in the rule of law domain. According to the survey, the prosecutorial system is the recipient of less than one percent (0.03%) of the assistance committed to the sector, with three activities recorded, for a total amount of US$28,125. Two-thirds of these activities are aimed at prosecutor training, while the remaining one-third include training and other forms of support (mixed). As for the status of these activities, one is ongoing, and two are pending.
Among the most pressing needs in this area of the sector are:
As long as law reform continues (See Section 11, infra ), Palestinian lawyers must continue to endure the unique challenges associated with working under a system of outdated and sometimes contradictory laws originating from a variety of different sources. They also must carry out their work in the context of a non-organized bar association, 63 with few opportunities for continuing legal education, 64 with a lack of clear professional standards, 65 and little access to legal information.
Support for the development of access to legal information, including a legal database, is critical for all working in the legal system. 66 The legal database at Birzeit University Institute of Law, which represents a significant part of the core informational resource for rule of law institutions, has made some progress since the previous Survey. It now includes nearly all currently applicable legislation in the WBGS. However, the database
still lacks commentary on that legislation – commentary which is necessary for legislative researchers to understand why provisions of previous legislation were incorporated or withdrawn from that legislation, and to advise legislators on the value of such provisions.
Support is also needed to ensure that the database will incorporate some case law,67 which is necessary for members of the legal profession to understand the judiciary’s interpretations of legislation and other regulations. Members of the legal profession also need access to related legal documents – including international treaties and agreements, comparative law and Palestinian legal texts. These texts could be incorporated into the database, or access could be provided to such documents through the Internet -- e.g., at law libraries in both the Gaza Strip and West Bank.
Through the generous support of donors, in particular the World Bank, the database is becoming a valuable resource for the entire legal community. With additional concentrated support to this sub-sector, it may soon become one of the most important tools in rule of law development for the West Bank and Gaza Strip.
In the field of legal education, there has been some notable progress. In 1998, the new Institute of Law at Birzeit University, with the generous support of both France and Qatar, was completed and inaugurated. Aside from carrying out basic legal education, the new Institute is expected to be the site of planned continuing education training for judges, prosecutors and others in the legal profession. 68
Legal practice development accounts for 5.1% of the committed assistance to the sector. With 31 activities recorded by the survey, the total amount reported as committed to this sub-sector has reached US$5,152,528. By activity, 35.5% is in the form of technical support, 35.5% is in mixed form, 16.1% is in the form of financial assistance, and the remaining 12.9% is in the form of training and education. With regard to the status of these activities, eleven are reported as completed, with seventeen ongoing and three pending implementation.
Additional support for this sub-sector has come from a number of other donors and implementing agencies, including the UK, Australia, France, Germany, the European Union, the World Bank, the Ford Foundation, Australian Legal Resources International, and Birzeit University’s Institute of Law, among others.
While these very significant contributions to the sub-sector have been welcomed by those in the legal profession, a great number of needs remain outstanding, including in particular:
The many different law enforcement agencies also lack standing orders and other internal procedures derived from international human rights standards and other standards of conduct, and a clear legal framework for their consolidation, organization and activities. Proper continuing education or specialized training also continues to be needed, and has been requested by Palestinian representatives of the various branches of law enforcement through the Police Aid Coordination Committee. 72
Looking only at rule of law assistance, the police agencies are the recipients of 14.4% of the total committed assistance to the sector, representing some US$14,552,898. A total of 15 activities were reported. Of the activities reported, the majority, or 66.7%, is devoted to training. Another 6.7% is in the form of technical support, while the remaining 26.6% is in mixed form. Among these activities, six are reported as completed, four as ongoing, and five as pending.
International support has been provided to this sub-sector, notably from Norway, Sweden, Germany, the EU, OHCHR, and UNICEF. UNSCO has provided support through the Danish Police Training Programme, and through the provision of relevant international standards or principles relating to law enforcement and the legal system. 73
Much of the support provided has been in the form of training programmes, particularly in the field of human rights. Additional training, beyond the field of human rights, has also been provided, however. Yet, even in the field of training, much more support (in addition to human rights training) is needed, including the following areas: 74
Further, no comprehensive legal framework which allows for alternatives to incarceration (e.g., probation, suspended sentences, restitution to victims, community service) is yet in place. 76
The Director General of Prisons has reiterated his appeal for international support for improvement of prison facilities in the West Bank and Gaza Strip, for specialized training of the personnel who staff the prison system, and for basic material needs. 77 Some support is anticipated for this sub-sector, with human rights training programmes organized by OHCHR and funded by Norway, scheduled to commence in 1999. No support has been registered in the Survey for construction or rehabilitation of prison facilities.
To date, penal institutions are the recipient of less than one percent (0.5%) of the assistance committed to the sector, with this percentage representing a total amount of US$478,800. Within the sub-sector, five activities were reported, 60% of them dedicated to training and education, 20% to technical assistance, and the remaining 20% as mixed forms of support. All of the activities were reported as pending implementation. Thus, according to the information received in the drafting of the Survey, no support has been made available for the improvement of prison conditions, or the development of alternatives to incarceration.
Among the most pressing needs for penal institutions are:
7. National Policy Development Mechanisms for the Rule of Law and Human Rights, which act as the guides for the proper development of the rule of law, continue to lack the resources (financial, technical and material) to properly implement national strategies and policies. Although some progress has been made in the development of national plans and policies to address the needs of vulnerable groups, additional support is needed to ensure the effectiveness of the mechanisms which implement these plans.78
On 10 December 1998, the 50th Anniversary of the Universal Declaration of Human Rights, a representative of the Palestinian Authority announced plans to launch, with the support of OHCHR and the Government of Norway, a National Plan of Action for Human Rights . Prior to this, Australia and ALRI had contributed to the creation of the Ministry of Justice’s Rule of Law Strategic Development Plan , and UNSCO has provided technical advice to the Ministries of Justice and Interior, as well as the Palestinian Legislative Council, for purposes of ensuring proper implementation of this plan.
UNICEF has worked with the Palestinian Authority to develop a National Plan of Action for Children , with funding from Sweden and Spain, to protect the rights of children. The Netherlands is supporting the Ministry of Planning and International Cooperation (MOPIC) to develop a gender planning and development directorate within that Ministry. Further, UNDCP is providing support to the Palestinian Legislative Council, and to the Ministries of Justice, Health and Interior, as well as to the Palestinian Police Forces for the development and implementation of a National Plan of Action on Drug Control . Finally, the OHCHR has provided support to the Presidential Advisor on Human Rights to further strengthen national policy developing institutions in human rights, and USAID has assisted MOPIC in the creation of a quality assurance unit for review of all proposed policies and legislation.
Many of these national policies involve a number of different institutions, and their implementation requires multi-institutional coordination. Yet, very little support has been aimed at developing coordination mechanisms to implement national strategies.
The National Policy Development Mechanisms sub-sector has been the recipient of 4.9% percent of the assistance funds dedicated to the rule of law sector, for a total of US$4,932,500. Of the 18 activities registered as supporting this sub-sector, 33.3% is in the form of technical assistance, 11.1% in the form of training and education, 5.6% as financial support, and 5.6% in the form of provision of equipment and materials. The remaining 44.4% was registered as mixed forms of support. Of the 18 activities, eleven are registered as completed and seven as ongoing. No activities were reported as pending implementation.
The most pressing needs in this sub-sector include:
Nevertheless, Palestinian NGOs have an immense ongoing need for additional financial resources, and have been largely dependent on membership and international community support to address this need. 79 Further, there remains serious concern among NGOs and other non-official organizations over an under-utilization of NGO expertise and resources by institutions in the public sector. 80
The international community has recognized the need for support to this sub-sector and has focused much of its effort in the rule of law domain on the strengthening of these organizations, with broad support coming from the EU, Norway, the Netherlands, Sweden, Switzerland, Denmark, Canada, the UK, Australia, Germany, USAID, the British Council,
OHCHR and UNDP, among others. UNSCO also has an NGO Unit, which focuses specifically on channeling support to NGOs and on providing the international community with centralized information on the work being carried out by NGOs operating in the West Bank and Gaza Strip. 81
NGO development has absorbed a full 16.7% of the assistance to the rule of law sector, for a total of US$16,864,421 in committed assistance. Of the support registered, 24.8% was in the form of financial assistance, 11.8% as provision of equipment and materials, 5.4% as training and education, 3.2% as technical support, and the remaining 54.8% in multiple forms of assistance. Of the 93 activities registered in the Survey, 35 are completed, 49 are ongoing and 9 are pending.
Members of the NGO community have welcomed the generous support to this sub-sector and continue to express their appreciation, but more support is needed, particularly in the following areas:
The PICCR is almost entirely dependent on external funding. 85 To carry out its many tasks, it must appeal for support to the international community. International support for the PICCR has indeed increased since the last Survey, including support from Norway, Sweden, Denmark, the Netherlands, Germany, France, the UK, the EU, UNIFEM and the British Council. Collective support to this sub-sector now represents 1.7% of the overall total assistance committed to the rule of law sector, equaling US$1,713,993. A large majority, or 78.9%, of that support is in the form of financial assistance, while another 15.8% was registered in mixed or multiple forms of assistance, and the remaining 5.3% in the form of provision of equipment and materials. Of the 19 activities registered as taking place in this sub-sector, four are registered as completed and fifteen as ongoing. No activities were registered as pending.
In light of the extensive role PICCR plays in rule of law development, PICCR has developed a strategy for the years 1999-2000, and has estimated its anticipated costs for the year 1999 to be approximately US$1,057,000, and for the year 2000 at approximately US$1,163,000. 86 At least for the near future, PICCR will remain almost wholly dependent on international support. Some funding has been secured to cover these costs, but more is needed for each of the areas of work carried out by the PICCR, but particularly for the following areas:
In addition, the Chair of the Legal Committee has stressed the continuing need for support in the number of staff, 91 for staff training, provision of basic computer and other office-related equipment, and the need to develop a more comprehensive means of conveying the status of work of the Legislative Council to the Palestinian public. 92
According to the activities registered by the Survey, much progress has been made in terms of support to the Legislative Council, particularly in the area of developing a regulatory and procedural framework for the conduct of its work. Support has been received or is anticipated from the EU, Australia, USAID, France, the UK (DFID), Norway and the ILO.
In all, the Palestinian Legislative Council has been the recipient of a large percentage (15.0%) of the overall committed assistance to the rule of law sector, representing US$15,083,692. Among the activities registered in the survey, 30.0% is in the form of technical assistance, with another 10.0% representing training and education, 10.0% as provision of equipment and materials, 5.0% as financial assistance, and the remaining 45.0% reported as mixed or multiple forms of assistance. Of the 20 activities registered, ten are reported as completed, with six ongoing, and two pending.
Some of the more pressing needs in this sub-sector include:
Support to this sub-sector has been provided by (or is anticipated from) a number of donors and agencies, including Norway, Japan, the EU, Switzerland, USAID, the UK, Canada, France, Italy, the World Bank, UNDCP, the OHCHR, UNDP and UNICEF, among others. Although much support has bolstered specific institutions involved in the law reform process, much more support is needed in the effort to encourage these institutions to work on a coordinated basis, to ensure a systematized, unified and efficient approach to law reform and rule of law development.
A significant amount of additional support in the law reform development sub-sector has been registered since the last Survey survey. The sub-sector is the recipient of 4.4% of the overall support for the rule of law sector, for a total of US$4,437,795. Much of that support (58.1%) has been focused on the provision of technical assistance, another 12.9% on training and education, 3.2% on financial assistance, and the remaining 25.8% reported as mixed forms of assistance. Of the 31 activities registered in the Survey, 13 were reported as completed, 17 as ongoing and one pending.
The Palestinian Authority, through the Ministry of Justice, has established a plan for the unification and harmonization of laws, 94 and much of the work related to this plan is being addressed by efforts of the international community. 95 This aspect of rule of law development is still in need of further support.
The Head of the Diwan Al Fatwah Wal Taschri’ in the Ministry of Justice, the Chairman of the Legal Committee of the Palestinian Legislative Council, and a number of other officials involved in rule of law development have appealed for increased support to the law reform process.96 An inherent and fundamental part of this law reform effort includes the law commissions, and an enhanced coordination structure among the institutions involved in law reform.
Accordingly, the most pressing needs for support in this sub-sector of the rule of law development include:
12. A Forensic Science Capacity , which is crucial to evidentiary soundness, efficient prosecution, and ensuring a fair defense, remains under-developed in both the West Bank and the Gaza Strip.
Facilities to house part of this forensic science capacity (mostly for analysis of drugs and explosives) have been constructed on the premises of the Palestinian Police Forces Headquarters in Gaza, but these facilities have not yet been equipped. Some police personnel have undergone training in drug identification and other forensic work but, for lack of essential equipment, have been dispersed to take up other duties. 98 Forensic pathology and other forms of forensic medicine training and equipment also are needed. 99
The Palestinian Authority has developed a list of specific areas that should be addressed to ensure the proper development of a solid forensic science capacity, 100 but few activities which impact upon these areas have been registered.
This sub-sector is the recipient of US$1,500,000 in assistance, representing 1.5% of the overall committed assistance to the rule of law sector. Of registered activities, 50% are in the form of technical support, with the remaining 50% in the form of provision of equipment and materials. Among the four activities registered, three were reported as ongoing, and one as pending. No activities were reported as yet completed.
Among the most pressing needs in this sub-sector include:
13. Electoral System Development , which is the backbone of a democratic system based on the will of the people, remains in need of permanent and sustainable financial and technical support. In the 18 months since the previous Survey, only one additional activity has been registered for this sub-sector.
Notwithstanding the slowing of support, this sub-sector has received a very large amount of assistance, with generous support from the EU, USAID, Japan, Canada, Denmark, Spain, UNDP and others. This sub-sector, formerly the recipient of the largest percentage of support, is now the recipient of a total of US$10,235,309, representing 10.2% of the overall support for the sector. Of this support, 30.8% was in the form of technical advice, 7.7% in the form of training and education, and the remaining 61.5% in multiple forms of assistance. Of the 13 activities registered in the survey, 11 were recorded as completed, with two ongoing and none pending.
Some of the more basic needs in this sub-sector include, but are not limited to, the following:
14. Conflict Resolution Capacity Development , which is a method of resolving disputes outside the normal channels of the legal system, and can be a valuable resource for reducing the heavy workload of the court system, remains under-supported. No comprehensive legislation has yet been passed to address mediation, arbitration, 102 or other forms of alternative dispute resolution. 103
Further training and education among lawyers and judges is needed, as well as support to enhance the development of standardized alternative dispute resolution procedures. Support is also needed to provide incentives to litigants to refer their case to alternative dispute resolution. Incorporating these procedures and options into court administration development and training, to ensure that appropriate court personnel are aware of this option and can make it known to litigants, is also needed. 104
Some support for this sub-sector has been registered from the World Bank, Italy and the ILO, among others. Indeed, in January 1999, the Ministry of Justice signed a contract with the non-governmental organization Search for Common Ground to carry out much needed project assistance in this sub-sector.
This sub-sector is the recipient of US$1,396,142 in support, representing only 1.4% percent of the overall support for the rule of law sector. Of this amount, 50.0% is in the form of technical support, 25.0% in training and education, and the remaining 25.0% is in multiple forms of assistance. Of the 12 activities registered in this sub-sector, three are completed and nine are ongoing.
The continuing needs in this sub-sector include:
15. Human Rights Education and Public Information Development , represents a key component in the development of a society respectful of the inalienable rights of every individual, and is in need of the support of the international community, particularly in the form of public information campaigns on human rights, incorporation of human rights education and other public information into classroom curricula, and support for NGOs and other civil society efforts who carry out this work.
To date, this sub-sector has grown with the generous support of the EU, USAID, Canada, Australia and others. This sub-sector is the recipient of US$7,551,530 in support, representing 7.5% percent of the overall support for the sector. Of the 23 activities registered, 34.8% is in the form of financial assistance, 13.0% as training and education, 4.3% as technical support, 4.3% in the form of provision of equipment and materials, and the remaining 43.5% registered as multiple forms of assistance. Of the activities registered, 18 are completed and 5 are ongoing, while no activities were registered as pending.
Rule of law development in the WBGS has made progress over the past five years, and has been the recipient of generous support from the international community. The Ministry of Justice has received support in the provision of much-needed technical and training assistance, as well as some material assistance. Much training in the field of human rights has been provided to law enforcement officials, and additional training is anticipated for members of the judiciary, as well as for prosecutors and other members of the legal profession.
Despite these gains, the demand and needs in the rule of law domain still far outweighs the supply, and the sector needs a reinforced level of assistance. If Palestinians are to be governed through a system that secures and maintains the rights of all, and if other forms of economic and social assistance are to have sustainability, a higher degree of focus and support is needed on rule of law development.
Non-governmental organizations, and the Palestinian Independent Commission for Citizens’ Rights, both vital to expressing the needs and concerns of all Palestinians, will need continued support to address those needs, as well as aid the Palestinian Authority in addressing those needs.
Above all else, major progress has been made in the rule of law domain in that the international community has shown an increasing level of attention to a sector which is now widely seen as playing a key role in ensuring the sustainability of other forms of development assistance. Additional support is needed, however. In this light, this Survey, aside from providing information which not only conveys the specific areas in which progress has been made, is designed to provide further detail on the areas which remain a concern. Reinforced support to these areas will help ensure the comprehensive development of a system based solidly on the rule of law.
Rule of Law Sector Support Table 106
1997 - 1999
Al Quds University
Summary Table of Most Pressing Needs within
Each of the Development Sub-Sectors of the Rule of Law
Sub-sector One: Ministry of Justice Development
The Fifteen Development Points
1. Strengthening of the Capacity of the Ministry of Justice:
1.1 establishment of an inter-ministerial legal committee to support the MOJ in legal reform activities, analysis, and policy making;
1.2 provision of training and fellowships to key MOJ personnel in legislative drafting and analysis and international standards for the administration of justice;
1.3 completion of the computerization of MOJ offices;
1.4 supplementing of MOJ law libraries.
2. Strengthening of the Capacity of the Judiciary:
2.1 development and institutionalization of a national judicial administration curriculum and training programme;
2.2 strengthening of court budget management, statistics and case administration;
2.3 adoption of new code of judicial procedure and regulatory framework for court administration;
2.4 establishment of new publications and compilations of court decisions, and their dissemination, and supplementing of judicial law libraries;
2.5 construction and provision of equipment for two new court buildings (Gaza and Ramallah);
2.6 renovation and provision of equipment for existing court buildings.
3. Strengthening of the Capacity of the Prosecutorial System:
3.1 development and institutionalization of a national prosecutorial training programme;
3.2 adoption of new prosecutorial procedures, guidelines and administrative systems ;
3.3 completion of computerization of prosecution offices;
3.4 supplementing of prosecutorial law libraries;
3.5 renovation and conversion of offices of the Attorney General.
4. Strengthening of the Capacity of Legal Practice / Legal Education and Access to Legal Information:
4.1 development and dissemination of professional standards for law practice;
4.2 strengthening of the institutional capacity of Palestinian bar associations;
4.3 supplementing and improvement of existing legal education programmes and continuing professional training programmes;
4.5 completion of the Birzeit legal data base project;
4.6 preparation of a judicial data base;
4.7 provide equipment and materials for data base access by legal professionals in the executive, legislative, and judicial branches and in civil society;
4.8 establish permanent facilities for data base maintenance and access.
5. Strengthening of the Capacity of Law Enforcement:
5.1 preparation and adoption of new criminal procedure law and regulations;
5.2 preparation and adoption human rights guidelines for police and strengthening of citizen complaints mechanisms;
5.3 preparation and adoption of national human rights curriculum for police;
5.4 consolidation and institutionalization of human rights training capacity for the police.
6. Strengthening of the Capacity of Penal Institutions:
6.1 preparation and adoption of new law on prisons and prison regulations;
6.2 preparation and adoption of human rights guidelines for prison officials;
6.3 preparation and adoption of a national curriculum for prison officials, and institutionalization of training capacity for prison officials;
6.4 development of the system of non-custodial measures;
6.5 renovation and provision of equipment for prisons.
7. Strengthening of the Capacity of Policy Making Institutions:
7.1 development and implementation of a national plan of action for human rights and the rule of law;
7.2 establishment of a legal and policy review unit in MOPIC, for the incorporation of international standards into domestic law and policy;
7.3 supplementing of the electronic and hard-copy legal resources of MOPIC;
7.4 strengthening of the technical capacity of MOPIC in the areas of negotiations and international agreements.
8. Strengthening of the Capacity of NGOs:
8.1 enhancement of the institutional and organizational skills and capacities of non-governmental Palestinian human rights and legal organizations;
8.2 provision of financial support for the activities of non-governmental Palestinian human rights and legal organizations;
8.3 strengthening of coordination between Palestinian NGOs;
8.4 facilitation of Palestinian NGO input into and support for the development and reform of the Palestinian legal system.
9. Strengthening of the Capacity of Independent National Human Rights Institutions
9.1 consolidation of the institutional and organizational capacity of the Palestinian Independent Commission for Citizen Rights (PICCR);
9.2 expansion of the outreach services and accessibility of the PICCR;
9.3 support for the educational, advocacy, monitoring, and legal development activities of the PICCR;
9.4 facilitation of PICCR input into the development and reform of the Palestinian legal system.
10. Strengthening of the Capacity of the Legislative Council
10.1 supplementing of the library of the PLC in the legal, social, economic, political and technical fields in which it legislates;
10.2 expansion and renovation of PLC buildings and facilities, and completion of their furnishing and equipment;
10.3 supplementing of the technical and legal staff of the PLC;
10.4 strengthening of the community and constituency relations capacity of the PLC.
11. Strengthening of Law Reform Capacity
11.1 establishment of subject-based law commissions and their secretariat to carry-out legislative reform and development;
11.2 provision of facilities, equipment, furniture and materials for the law commissions and their secretariat;
11.3 facilitation of the participation of the PICCR, Palestinian NGOs, legal professionals, and line ministries in the legislative reform process;
11.4 publication and dissemination of new Palestinian laws.
12. Strengthening of Forensic Science Capacity:
12.1 strengthening of existing forensic science capacities within the police services;
12.2 establishment of forensic science centre at Al Quds Faculty of Medicine with satellite office in Gaza;
12.3 provision of equipment, furniture and materials for the forensic science centre ;
12.4 training of forensic science personnel.
13. Strengthening of the Electoral System:
13.1 strengthening of institutional capacities for the periodic organization and conduct of municipal and general elections;
13.2 strengthening of domestic electoral monitoring capacity;
13.3 institutionalization of domestic capacity for electoral public education programmes;
13.4 strengthening of the organizational capacity of democratic political parties.
14. Strengthening of Alternative Dispute Resolution Capacity
14.1 expansion of alternative dispute resolution mechanisms;
14.2 strengthening of the legal framework for alternative dispute resolution;
14.3 preparation of professional alternative dispute resolution standards;
14.4 training of instructors and education of legal professionals in the use of alternative dispute resolution.
15. Strengthening of Human Rights/ Civic Education Capacity
15.1 expansion of the human rights and civic education programmes of Palestinian NGOs;
15.2 publication and distribution of Arabic language human rights materials;
15.3 introduction of mass media programmes on human rights themes;
15.4 introduction of human rights curricula in Palestinian public schools.
STATUS OF PALESTINIAN LEGISLATION
Status of Draft Legislation
( As prepared by Ministry of Justice – as of 7 March 1999)
September – October 1998 Report 111
Regarding Implementation of
Palestinian Authority / World Bank Legal Development Plan
Status of legislation being drafted through the Ministry of Justice
under the World Bank-funded
Legal Development Plan
1998 Economic Plan, September – October Report of Progress Committee
Action required: Completion of draft and passage.
Comments: IFC and World Bank support the PA policy to reduce tax rates. There are a number of reasons supporting this argument: (i) the bulk of the Palestinian revenues are derived from indirect taxes (VAT and customs); (ii) a reduced income tax rate would encourage the submission of documents for reimbursement of VAT and customs, and therefore diminish the leakage and avoidance from the taxpayers; and (iii) it would broaden the taxpayer base.
Action required: Submission of final report with recommended legislation.
Action required: Cabinet approval. Expected to be presented to the PLC in December.
Action required: Finalize the draft.
April 23, 1998
Action required: Conform draft to Palestinian needs.
Comments: The Progress Committee views the establishment of intellectual property rights protection as a crucial step for the encouragement of investment. It is also of particular importance to the Bethlehem 2000 events, such as protecting the logo and performance artists.
Action required: Finalize the translation.
Action required: Finalize revisions.
Comments: The absence of an effective law in the insurance sector has contributed to a difficult business environment. Consultants have been hired through the Technical Assistance Trust Fund (coordinated through the World Bank and PECDAR) to conduct an audit of the insurance sector to assess the financial viability of companies providing insurance services in WBG. A number of insurance companies are experiencing extreme difficulties and the Ministry of Justice wishes to delay the legislative process pending resolution of these difficulties. The Irish consultants worked in the field during September and October and presented their findings in an interim report in November (to be discussed in November/December Progress Report).
Action required: Review of the draft in DIWAN. Through the Ministry of Economy, prepare and deliver information and support to the concerned ministries and government agencies and ultimately the private sector.
Comments: The World Bank has commissioned an expert to explain technical aspects of this law and hold additional workshops as needed. Practical implementation of the law requires positive changes in the present tax law.
Comments: The implementing regulations of this law were amended twice (latest in October 1997) by the Minister of Housing.
Action required: Pension Board to provide comments and views on proposed law and action to be taken.
Comments : This law was submitted to the Pension Board for review and processing. Funding will be required to engage consultants to advise the Pension Board in the review of this law. In view of the importance of this matter, President Arafat has instructed that the draft law be applied, pending finalization of the legislative process.
Substantial and important issues which need to be addressed in the pension sector in the WBG include harmonization of the pension system between the West Bank and Gaza.
Action required: Incorporate comments and finalize draft.
Comments: According to the Bank-funded legal consultant, there is an urgent need to enact comprehensive new legislation governing the definition, licensing, supervision and regulation of banks and other deposit-taking financial institutions which conduct banking business in WBG. The current legal position, largely inherited from the period prior to the signing of the Oslo Accords in September 1993, is incomplete and hampers the efficient functioning and development of the Palestine Monetary Authority in general and the Banking Supervision Department in particular.
Action required: Funding is needed to prepare/finalize this law and engage consultant.
Comments: Diwan received a draft from the Ministry of Social Affairs, but due to the technical nature of the subject, substantial technical assistance will be required in order to finalize the draft. A consultant who has recently done similar drafting in the region should be brought to the WBG to assist with this law.
Action required: Complete preparation of draft.
Comments: Coordination between the various capital markets teams is crucial and appears to be proceeding well. The draft securities law empowers the Securities Commission to regulate and supervise the mutual fund industry. Draft regulations covering the activities of mutual funds and participants in the mutual fund industry will be prepared.
Action required: Further progress on the income tax law is required before finalization of this law.
Comments: The PA intends to consider this law late in early 1999.
Action required: PLC approval.
Action required: Begin work on a first draft.
Comments: USAID is willing to provide training and assistance for self-regulatory associations and to implement a law for uniform accounting standards.
Action required: Ministry of Justice to constitute additional commissions to under take review of existing laws, assess need for harmonization and modernization and continue drafting of new codes.
Progress on other components of the World Bank’s Legal Development project:
The Bank gave its ‘no-objection’ to the recruitment of consultants to work on the modernization of the civil procedure and criminal procedure laws. Work on these laws progressed well. The process of selecting a contractor for the court administration, judicial education and legislative drafting components progressed to a short list. Substantial progress is expected for November/December.
1517-1839 Ottoman laws and legal system in place in Palestine, Islamic jurisprudence and legal traditions shape legal realities;
1839 Tanzimat legal reform movement initiated by the Ottoman Sultan, resulting in the adoption of European-style legal codes;
1840 French model Penal Code adopted; special commercial court established to adjudicate disputes between European and Ottoman merchants;
1850 French model Commercial Code adopted;
1858 French model Land Code adopte d, subsequently amended to reflect German land inheritance system;
1861 French model Commercial Procedure Code adopted;
1863 French model Maritime Code adopted;
1871 Civil court system introduced for civil and commercial matters; Shari'a courts maintain jurisdiction over personal status and Waqf;
1877 Majalla , the Ottoman Civil Code, is adopted, substantively codifying Islamic Shari'a law, principally from the perspective of the Hanafi School of Muslim Jurisprudence, but following a Napoleonic form;
1879 French model Criminal Procedure Code adopted;
1917 British Occupation of Palestine begins as WWI begins to draw to a close;
1918 British Military Administration established, assuming responsibility for all laws, proclamations and orders; British authorities begin to amend and supersede land laws by proclamation, ordinance and formal amendment;
1919 First Official Gazette of Palestine published, under the authority of the "Government of Palestine", i.e., the British administration;
1920 British military administration replaced by a civil administration, headed by the High Commissioner for Palestine;
1922 League of Nations decides to entrust mandate over Palestine to Great Britain; Palestine Order-in-Council provides for the wholesale introduction of British Common Law in most legal areas, and of British judicial structures; Contracts remain subject to Majalla , and personal status to Muslim, Christian and Jewish courts;
1923 British mandate formally approved by League of Nations;
1923-1948 British legal system super-imposed on existing structures;
1948 State of Israel declared in largest portion of the territory; Jordanian administration begins in the West Bank; Egyptian administration begins in the Gaza Strip; three separate and different legal development tracts commence in the three territorial units of historical Palestine;
1948-1967 In the West Bank- Jordanian administration; previously existing laws continue in effect, to the extent not contradicting Jordanian defense laws; from 1949, King of Jordan assumes all powers previously exercised by the King of England, amending several laws; from 1950, West Bank united with East Bank, with Parliamentary representation from both sides; result is hybrid system with some laws applying to both banks, and others applicable to only one side or the other; legislative boom brings several legal reforms, reducing English legal influence and Common-Law form, and increasing the degree of influence of Arab legal tradition, and Continental legal structure;
1948-1967 In the Gaza Strip - Egyptian administration; pre-existing substantive laws and legal structures remain largely in force; several administrative, procedural and regulatory reforms introduced; in 1955, Egypt issues the Basic Law, as a new constitution for the Gaza Strip, confirming pre-existing law as applicable; in 1962, Egypt issues the Constitutional Order, emphasizing Palestinian identity, and providing that all laws and court judgements are to be issued in the name of the Palestinian People;
1967 Israel occupies the West Bank and Gaza strip, annexing (without international recognition), Jerusalem and its surrounding areas; Palestinian Court of Appeals is evicted from the court house in Jerusalem, and the building is taken over by the Israeli District Court; West Bank court system is cut off from the Cour de Cassation in Amman, and that court is abolished, as is the Court of Appeals; Israeli military assumes law making function, and begins to revise laws and legal structures in the West Bank and Gaza Strip;
1967-1993 Israel abolishes the independence of the judiciary, putting West Bank and Gaza courts under the authority of the Occupying Power; military tribunals introduced throughout the territories; over 1400 military orders are introduced in the West Bank, and over 1100 in Gaza; virtually every piece of legislation in the Occupied Territories is amended, changed or repealed by military order;
1993 Declaration of Principles on Interim Self-Government Arrangements "Oslo Agreement" signed by the PLO and Israel; the Agreement provides for a five-year timetable for negotiations, details the issues to be discussed, establishes a framework for the redeployment of Israeli forces, and provides for Palestinian self-rule in much of the Gaza Strip and Jericho; it also provides for early empowerment of the Palestinians in the rest of the West Bank, and for the election of a Palestinian Legislative Council;
1994 Agreement on the Gaza Strip and the Jericho Area ("Cairo Agreement") signed, further detailing interim arrangements; PLO Chairman Yasser Arafat returns to Gaza and established the Palestinian Authority;
1995 The Israel-PLO Interim Agreement on the West Bank and Gaza Strip ("Oslo II Agreement", or "Taba Agreement") is signed, extending limited Palestinian jurisdiction to certain other areas of the West Bank, and dividing the territory into "A, B, and C" areas, respectively, with varying levels of limited autonomy and redeployment; Concurrently, all of the West Bank and Gaza Strip remain occupied territory under international law. Israel, in all areas, retains control over "final status issues", including Jerusalem, refugees, borders, foreign relations, settlements, and Israeli nationals in the West Bank and Gaza Strip;
1996 Elections are held for the Palestinian Legislative Council and President of the Palestinian Authority; Palestinian Authority, the Palestinian Legislative Council, and the Palestinian Judiciary are operating in the self-governing areas; a number of Presidential Decrees are issued, and the Council begins to adopt new laws; the first of several Palestinian Law Reform Committees is established, to review laws on the judiciary; The Palestinian Authority issues plans for the reform of the legal system;
1997 The Palestinian Authority establishes an inter-ministerial "core group" on the rule of law and legal institutions, charging that group with planning for the development of the legal sector. The core group, working in concert with established donor for a, issues detailed plans covering the period through 1999. Projects are under way in all areas of the sector, preparing the way for the next millennium of Palestinian legal development.
1998 The Wye River Memorandum is signed by Palestinian President Yasser Arafat, Israeli Prime Minister Benjamin Netanyahu and United States President William Jefferson Clinton, and witnessed by Jordan’s King Hussein. The Memorandum, created to facilitate implementation of the stalled Interim Agreement and other related agreements sets forth specific steps to be taken in three phases of further redeployments and in security measures, and states that the “Palestinian Police will exercise powers and responsibilities to implement this Memorandum with due regard to internationally accepted norms of human rights and the rule of law, and will be guided by the need to protect the public, respect human dignity, and avoid harassment.”
1999 Key legislation on the judiciary and on the Palestinian Bar Association is anticipated to be passed into law.
Compilation of International Standards for the Rule of Law
Basic Principles On The Independence Of The Judiciary (UN G.A. Res. 40/32 of 29 November 1985)
Guidelines on the Role of Prosecutors (8th UN Crime Congress, 1990)
Basic Principles On The Role Of Lawyers (8th UN Crime Congress, 1990)
Code of Conduct for Law Enforcement Officials (UN G.A. Res. 34/169 of 17 December 1979)
Principles Relating to National Human Rights Institutions (UN G.A. Res. 48/134 of 20 December 1993)
Standard Minimum Rules for the Treatment of Prisoners (ECOSOC Res. 663C of 31 July 1957)
Standard Minimum Rules for Non-custodial Measures (8th UN Crime Congress, 1990)
A Framework for the strengthening of the rule of law
[...]These constituent elements, listed below, should form the basis for coordinated international assistance to states seeking to strengthen the rule of law.
1. A strong Constitution , which, as the highest law of the land, inter alia:
(a) incorporates internationally recognized human rights and fundamental freedoms, as enumerated in the International Bill of Human Rights;
(b) establishes effective and justiciable remedies at law for violations of those rights;
(c) empowers an independent judiciary consistent with the United Nations Basic Principles on the Independence of the Judiciary;
(d) enumerates and restricts permissible limitations on human rights to those determined by law to be necessary for securing due recognition and respect for the rights and freedoms of others and for meeting the just requirements of morality, public order and the general welfare in a democratic society, consistent with article 29 of the Universal Declaration of Human Rights;
(e) enumerates and limits emergency powers and permissible derogations of human rights and freedoms under states of emergency, consistent with the provisions of article 4 of the International Covenant on Civil and Political Rights and the recommendations of the United Nations Special Rapporteur on States of Emergency;
(f) provides for non-discrimination on the basis of race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status, and which protects national minorities;
(g) establishes national human rights institutions , such as an office of the ombudsman or an independent human rights commission, consistent with the United Nations Principles on the Status of National Institutions;
(h) provides for the applicability of international human right s treaty obligations in the domestic law of the land, and;
(i) defines and limits the powers of government and its various branches, vis-a-vis each other, and the people.
2. A strong electoral system, which, inter alia:
(a) assures that the will of the people shall be the basis of the authority of government;
(b) assures the right of everyone to take part in the government of his or her country, either directly or through freely chosen representatives;
(c) assures equal access to public service, including elective public service;
(d) provides for periodic and genuine elections;
(e) guarantees universal and equal suffrage;
(f) guarantees the secrecy of the ballot;
(g) secures an electoral atmosphere which is free of intimidation, and respectful of certain prerequisite rights , such as free opinion, expression, information, assembly, and association;
(h) provides for non-discrimination in the area of political rights;
(i) provides for independent review of alleged irregularities;
(j) provides for objective, unbiased and independent electoral administration, and;
(k) provides for the transfer of power to victorious parties and candidates under the law.
3. A strong legal framework , under the Constitution, which protects human rights and democracy, and which provides for effective redress, in all key areas, including, inter alia :
(a) fair immigration, nationality and asylum laws which are consistent with relevant international standards;
(b) penal laws and laws of criminal procedure which respect and uphold international standards for human rights in the administration of justice;
(c) electoral laws which take account of the above concerns;
(d) prison laws and regulations which are consistent with the United Nations Standard Minimum Rule for the Treatment of Prisoners, and other relevant international instruments;
(e) laws for the protection of minorities, women, children and other vulnerable groups, which take into account their special status and international standards for their protection, and which outlaw and address the effects of discrimination;
(f) press laws , libel laws, broadcast laws, and other laws which are respectful of international standards for free expression, opinion and information;
(g) laws protecting free association or assembly;
(h) security legislation which is consistent with international standards, and which protects non-derogable human rights;
(i) laws on the judiciary, on legal practice, and on prosecution which reflect the standards embodied in the United Nations Basic Principles on the Independence of the Judiciary, Guidelines on the Role of Lawyers, Guidelines on the Role of Prosecutors, and other United Nations standards for the administration of justice;
(j) laws, guidelines, and directives which govern the conduct of police and other security forces consistent with the United Nations Code of Conduct for Law Enforcement Officials, Principles on the Use of Force and Firearms by Law Enforcement Officials, and other relevant international standards, and;
(k) fair procedures for the settlement of civil disputes under the law, and fair administrative laws, procedures and institutions consistent with international human rights standards;
(l) any other laws which may have a direct impact on the realization of internationally guaranteed human rights.
4. Strong National Human Rights Institutions , including independent commissions on human rights and ombudsman offices, with functions and structures consistent with the United Nations Principles Relating to the Status of National Institutions for the Protection and Promotion of Human Rights, as well as strong national human rights research and training institutes.
5. A strong judiciary , which is independent, adequately empowered, adequately financed, adequately equipped, and adequately trained to uphold human rights in the administration of justice.
6. An adequate national training regime for lawyers, judges, prosecutors, police and prison officials , which includes attention to their role in the protection of human rights;
7. A military which has ultimate allegiance to the Constitution and laws of the land, and to the democratic government, and which is trained in and committed to the principles of human rights and humanitarian law attending legitimate military duties.
8. Effective and accessible mechanisms for conflict resolution between and amongst citizens and groups in society and state organs.
9. Full incorporation into the international human rights system , including through ratification of or accession to international human rights treaties and training of government officials in implementing and reporting under those treaties.
10. A society which is educated in their rights and responsibilities, including through national human rights curricula in primary, secondary and post-secondary education, and teachers trained in education for human rights and democracy.
11. A strong civil society , including adequately trained, equipped, financed and organized Non-Governmental human rights organizations, womens' groups, labour unions, and community organizations.
12. Free, responsible, and flourishing mass media , which is trained in and committed to fairness and the promotion of human rights.
Taken together, these essential elements provide for a legal and institutional framework which will best serve to entrench the rule of law in society, and, thereby, to secure the effective enjoyment of human rights and democracy. @
Basic Principles on the Independence of the Judiciary
Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 Augus t to 6 September 1985 and endorsed by General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985
The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.
10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.
13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.
14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.
16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
The Guidelines set forth below, which have been formulated to assist Member States in their tasks of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings, should be respected and taken into account by Governments within the framework of their national legislation and practice, and should be brought to the attention of prosecutors, as well as other persons, such as judges, lawyers, members of the executive and the legislature and the public in general. The present Guidelines have been formulated principally with public prosecutors in mind, but they apply equally, as appropriate, to prosecutors appointed on an ad hoc basis.
2. States shall ensure that:
(a) Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of race, colour, sex, language, religion, political or other opinion, national, social or ethnic origin, property, birth, economic or other status, except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned;
(b) Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law.
4. States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.
5. Prosecutors and their families shall be physically protected by the authorities when their personal safety is threatened as a result of the discharge of prosecutorial functions.
6. Reasonable conditions of service of prosecutors, adequate remuneration and, where applicable, tenure, pension and age of retirement shall be set out by law or published rules or regulations.
7. Promotion of prosecutors, wherever such a system exists, shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures.
9. Prosecutors shall be free to form and join professional associations or other organizations to represent their interests, to promote their professional training and to protect their status.
11. Prosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest.
12. Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.
13. In the performance of their duties, prosecutors shall:
(a) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;
(b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;
(c) Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise;
(d) Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
14. Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.
15. Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences.
19. In countries where prosecutors are vested with discretionary functions as to the decision whether or not to prosecute a juvenile, special considerations shall be given to the nature and gravity of the offence, protection of society and the personality and background of the juvenile. In making that decision, prosecutors shall particularly consider available alternatives to prosecution under the relevant juvenile justice laws and procedures. Prosecutors shall use their best efforts to take prosecutory action against juveniles only to the extent strictly necessary.
22. Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision. They shall be determined in accordance with the law, the code of professional conduct and other established standards and ethics and in the light of the present Guidelines.
24. Prosecutors who have reason to believe that a violation of the present Guidelines has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial power.
The Basic Principles on the Role of Lawyers, set forth below, which have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general. These principles shall also apply, as appropriate, to persons who exercise the functions of lawyers without having the formal status of lawyers.
2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status.
3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources.
4. Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.
6. Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services.
7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.
8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.
Qualifications and training
10. Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory.
11. In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups.
13. The duties of lawyers towards their clients shall include:
(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;
(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.
18. Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.
19. No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.
20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.
21. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.
27. Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.
29. All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.
Adopted by General Assembly resolution 34/169 of 17 December 1979
(b) In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.
(c) Service to the community is intended to include particularly the rendition of services of assistance to those members of the community who by reason of personal, economic, social or other emergencies are in need of immediate aid.
(d) This provision is intended to cover not only all violent, predatory and harmful acts, but extends to the full range of prohibitions under penal statutes. It extends to conduct by persons not capable of incurring criminal liability.
(b) National commentaries to this provision should indicate regional or national provisions identifying and protecting these rights.
(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.
(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.
"[Such an act is] an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights [and other international human rights instruments]."
(b) The Declaration defines torture as follows:
"... torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It did not include pain or suffering arising only from inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners."
(c) The term "cruel, inhuman or degrading treatment or punishment" has not been defined by the General Assembly but should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental.
(b) While the medical personnel are likely to be attached to the law enforcement operation, law enforcement officials must take into account the judgement of such personnel when they recommend providing the person in custody with appropriate treatment through, or in consultation with, medical personnel from outside the law enforcement operation.
(c) It is understood that law enforcement officials shall also secure medical attention for victims of violations of law or of accidents occurring in the course of violations of law.
(b) While the definition of corruption must be subject to national law, it should be understood to encompass the commission or omission of an act in the performance of or in connection with one's duties, in response to gifts, promises or incentives demanded or accepted, or the wrongful receipt of these once the act has been committed or omitted.
(c) The expression "act of corruption" referred to above should be understood to encompass attempted corruption.
Law enforcement officials who have reason to believe that a violation of the present Code has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial power.
(b) The article seeks to preserve the balance between the need for internal discipline of the agency on which public safety is largely dependent, on the one hand, and the need for dealing with violations of basic human rights, on the other. Law enforcement officials shall report violations within the chain of command and take other lawful action outside the chain of command only when no other remedies are available or effective. It is understood that law enforcement officials shall not suffer administrative or other penalties because they have reported that a violation of this Code has occurred or is about to occur.
(c) The term "appropriate authorities or organs vested with reviewing or remedial power" refers to any authority or organ existing under national law, whether internal to the law enforcement agency or independent thereof, with statutory, customary or other power to review grievances and complaints arising out of violations within the purview of this Code.
(d) In some countries, the mass media may be regarded as performing complaint review functions similar to those described in subparagraph (c) above. Law enforcement officials may, therefore, be justified if, as a last resort and in accordance with the laws and customs of their own countries and with the provisions of article 4 of the present Code, they bring violations to the attention of public opinion through the mass media.
(e) Law enforcement officials who comply with the provisions of this Code deserve the respect, the full support and the co-operation of the community and of the law enforcement agency in which they serve, as well as the law enforcement profession.
International principles on their powers, methods and functioning
National institutions on human rights -- such as a Human Rights Commission [like the PICCR] -- are endowed with on-going, advisory authority aimed at the protection and promotion of human rights. In 1993, the United Nations General Assembly endorsed a set of principles on the status and functioning of national institutions for the purpose of encouraging and guiding their establishment. According to those prin ciples (see below for full text), a national institution shall be given as broad a mandate as possible and shall have the following responsibilities:
! to submit recommendations, proposals and reports on any matter relating to human rights (including legislative and administrative provisions and any situation of violation of human rights) to Government, Parliament or any other competent body;
! to promote conformity of national laws and practices with international standards;
! to encourage ratification and implementation of international human rights standards;
! to contribute to the reporting procedure under international instruments;
! to assist in formulating and executing human rights teaching and research programmes and to increase public awareness of human rights through information and education;
! to cooperate with the United Nations, regional institutions, and national institutions of other countries.
Where they are given the competence to receive and act upon individual complaints of human rights violations, the function of national institutions may be based on the following principles:
! informing the complainant of his or her rights, of available means of redress and to promote access to such redress;
! hearing complaints or referring them to a competent authority;
! seeking the amicable settlement of the matter through conciliation, binding decision or other means;
! making recommendations to the competent authorities including proposals for amendment of laws, regulations or administrat ive practices which obstruct the free exercise of rights.
II. Principles relating to the status and functioning of national institutions for protection and promotion of human rights (adopted by the United Nations General Assembly in 1993)
A. Competence and responsibilities
1. A national institution shall be vested with competence to protect and promote human rights.
2. A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.
3. A national institution shall, inter alia , have the following responsibilities:
(a) To submit to the government, parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the protection and promotion of human rights. The national institution may decide to publicize them. These opinions, recommendations, proposals and reports, as well as any prerogative of the national institution, shall relate to the following areas:
(i) Any legislative or administrative provisions, as well as provisions relating to judicial organization, intended to preserve and extend the protection of human rights. In that connection, the national institution shall examine the legislative and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights. It shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures;
(ii) Any situation of violation of human rights which it decides to take up;
(iii) The preparation of reports on the national situation with regard to human rights in general, and on more specific matters;
(iv) Drawing the attention of the government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the government;
(b) To promote and ensure the harmonization of national legislation, regulations and practices with the international human rights instruments to which the State is a party, and their effective implementation;
(c) To encourage ratification of the above-mentioned instruments or accession to those instruments, and to ensure their implementation;
(d) To contribute to the reports which States are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations, and, where necessary, to express an opinion on the subject, with due respect for their independence;
(e) To cooperate with the United Nations and any other agency in the United Nations system, the regional institutions and the national institutions of other countries which are competent in the areas of the protection and promotion of human rights;
(f) To assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional circles;
(g) To publicize human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education and by making use of all press organs.
B. Composition and guarantees of independence and pluralism
1. The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of:
Non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, association of lawyers, doctors, journalists and eminent scientists;
Trends in philosophical or religious thought;
Universities and qualified experts;
Government departments (if they are included, these representatives should participate in the deliberations only in an advisory capacity).
2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the government and not be subject to financial control which might affect this independence.
3. In order to ensure a stable mandate for the members of the institution, without which there can be no real independence, the appointment shall be affected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution's membership is ensured.
C. Methods of operation
Within the framework of its operation, the national institution shall:
1. Freely consider any questions falling within its competence, whether they are submitted by the government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner;
2. Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;
3. Address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations;
4. Meet on a regular basis and whenever necessary in the presence of all its members after they have been duly consulted;
5. Establish working groups from among its members as necessary and set up local or regional sections to assist it in discharging its functions;
6. Maintain consultation with the other bodies, whether jurisdiction or otherwise, responsible for the protection and promotion of human rights (in particular, ombudsmen, mediators and similar institutions);
7. In view of the fundamental role played by the non-governmental organizations in expanding the work of the national institutions, develop relations with the non-governmental organizations devoted to protecting and promoting human rights, to economic and social development, to combatting racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialized areas.
D. Additional principles concerning the status of commissions with quasi-jurisdictional competence
A national institution may be authorized to hear and consider complaints and petitions concerning individual situations. Cases may be brought before it by individuals, their representatives, third parties, non-governmental organizations, of trade unions or any other representative organizations. In such circumstances and without prejudice to the principles stated above concerning the other powers of the commissions, the functions entrusted to them may be based on the following principles:
1. Seeking an amicable settlement through conciliation or, within the limits prescribed by the law, through binding decisions or, where necessary, on the basis of confidentiality.
2. Informing the party who filed the petition of his rights, in particular the remedies available to him, and promoting his access to them;
3. Hearing any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law;
4. Making recommendations to the competent authorities, especially by proposing amendments or reforms of the laws, regulations or administrative practices, especially if they have created the difficulties encountered by the persons filing the petitions in order to assert their rights.
1. The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.
2. In view of the great variety of legal, social, economic and geographical conditions of the world, it is evident that not all of the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations.
3. On the other hand, the rules cover a field in which thought is constantly developing. They are not intended to preclude experiment and practices, provided these are in harmony with the principles and seek to further the purposes which derive from the text of the rules as a whole. It will always be justifiable for the central prison administration to authorize departures from the rules in this spirit.
4. (1) Part I of the rules covers the general management of institutions, and is applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to "security measures" or corrective measures ordered by the judge.
(2) Part II contains rules applicable only to the special categories dealt with in each section. Nevertheless, the rules under section A, applicable to prisoners under sentence, shall be equally applicable to categories of prisoners dealt with in sections B, C and D, provided they do not conflict with the rules governing those categories and are for their benefit.
5. (1) The rules do not seek to regulate the management of institutions set aside for young persons such as Borstal institutions or correctional schools, but in general part I would be equally applicable in such institutions.
(2) The category of young prisoners should include at least all young persons who come within the jurisdiction of juvenile courts. As a rule, such young persons should not be sentenced to imprisonment.
PART I: RULES OF GENERAL APPLICATION
6. (1) The following rules shall be applied impartially. There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
(2) On the other hand, it is necessary to respect the religious beliefs and moral precepts of the group to which a prisoner belongs.
7. (1) In every place where persons are imprisoned there shall be kept a bound registration book with numbered pages in which shall be entered in respect of each prisoner received:
(a) Information concerning his identity;
(b) The reasons for his commitment and the authority therefor;
(c) The day and hour of his admission and release.
(2) No person shall be received in an institution without a valid commitment order of which the details shall have been previously entered in the register.
Separation of categories
8. The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,
(a) Men and women shall so far as possible be detained in separate institutions ; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate;
(b) Untried prisoners shall be kept separate from convicted prisoners;
(c) Persons imprisoned for debt and other civil prisoners shall be kept separate from persons imprisoned by reason of a criminal offence;
(d) Young prisoners shall be kept separate from adults.
9. (1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.
(2) Where dormitories are used, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in those conditions. There shall be regular supervision by night, in keeping with the nature of the institution.
10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.
14. All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.
15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.
16. In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be enabled to shave regularly.
Clothing and bedding
17. (1) Every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating.
(2) All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.
(3) In exceptional circumstances, whenever a prisoner is removed outside the institution for an authorized purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing.
18. If prisoners are allowed to wear their own clothing, arrangements shall be made on their admission to the institution to ensure that it shall be clean and fit for use.
19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.
20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.
Exercise and sport
21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
(2) Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end space, installations and equipment should be provided.
22. (1) At every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.
(2) Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.
(3) The services of a qualified dental officer shall be available to every prisoner.
23. (1) In women's institutions there shall be special accommodation for all necessary pre-natal and post-natal care and treatment. Arrangements shall be made wherever practicable for children to be born in a hospital outside the institution. If a child is born in prison, this fact shall not be mentioned in the birth certificate.
(2) Where nursing infants are allowed to remain in the institution with their mothers, provision shall be made for a nursery staffed by qualified persons, where the infants shall be placed when they are not in the care of their mothers.
24. The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.
25. (1) The medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.
(2) The medical officer shall report to the director whenever he considers that a prisoner's physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.
26. (1) The medical officer shall regularly inspect and advise the director upon:
(a) The quantity, quality, preparation and service of food;
(b) The hygiene and cleanliness of the institution and the prisoners;
(c) The sanitation, heating, lighting and ventilation of the institution;
(d) The suitability and cleanliness of the prisoners' clothing and bedding;
(e) The observance of the rules concerning physical education and sports, in cases where there is no technical personnel in charge of these activities.
(2) The director shall take into consideration the reports and advice that the medical officer submits according to rules 25 (2) and 26 and, in case he concurs with the recommendations made, shall take immediate steps to give effect to those recommendations; if they are not within his competence or if he does not concur with them, he shall immediately submit his own report and the advice of the medical officer to higher authority.
Discipline and punishment
27. Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life.
28. (1) No prisoner shall be employed, in the service of the institution, in any disciplinary capacity.
(2) This rule shall not, however, impede the proper functioning of systems based on self-government, under which specified social, educational or sports activities or responsibilities are entrusted, under supervision, to prisoners who are formed into groups for the purposes of treatment.
29. The following shall always be determined by the law or by the regulation of the competent administrative authority:
(a) Conduct constituting a disciplinary offence;
(b) The types and duration of punishment which may be inflicted;
(c) The authority competent to impose such punishment.
30. (1) No prisoner shall be punished except in accordance with the terms of such law or regulation, and never twice for the same offence.
(2) No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence. The competent authority shall conduct a thorough examination of the case.
(3) Where necessary and practicable the prisoner shall be allowed to make his defence through an interpreter.
31. Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.
32. (1) Punishment by close confinement or reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it.
(2) The same shall apply to any other punishment that may be prejudicial to the physical or mental health of a prisoner. In no case may such punishment be contrary to or depart from the principle stated in rule 31.
(3) The medical officer shall visit daily prisoners undergoing such punishments and shall advise the director if he considers the termination or alteration of the punishment necessary on grounds of physical or mental health.
Instruments of restraint
33. Instruments of restraint, such as handcuffs, chains, irons and straitjackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances:
(a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority;
(b) On medical grounds by direction of the medical officer;
(c) By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.
34. The patterns and manner of use of instruments of restraint shall be decided by the central prison administration. Such instruments must not be applied for any longer time than is strictly necessary.
Information to and complaints by prisoners
35. (1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution.
(2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.
36. (1) Every prisoner shall have the opportunity each week day of making requests or complaints to the director of the institution or the officer authorized to represent him.
(2) It shall be possible to make requests or complaints to the inspector of prisons during his inspection. The prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director or other members of the staff being present.
(3) Every prisoner shall be allowed to make a request or complaint, without censorship as to substance but in proper form, to the central prison administration, the judicial authority or other proper authorities through approved channels.
(4) Unless it is evidently frivolous or groundless, every request or complaint shall be promptly dealt with and replied to without undue delay.
Contact with the outside world
37. Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals both by correspondence and by receiving visits.
38. (1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.
(2) Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.
39. Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration.
40. Every institution shall have a library for the use of all categories of prisoners adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.
41. (1) If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved. If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis.
(2) A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times.
(3) Access to a qualified representative of any religion shall not be refused to any prisoner. On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected;
42. So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by attending the services provided in the institution and having in his possession the books of religious observance and instruction of his denomination.
Retention of prisoners' property
43. (1) All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he is not allowed to retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition.
(2) On the release of the prisoner all such articles and money shall be returned to him except in so far as he has been authorized to spend money or send any such property out of the institution, or it has been found necessary on hygienic grounds to destroy any article of clothing. The prisoner shall sign a recept for the articles and money returned to him.
(3) Any money or effects received for a prisoner from outside shall be treated in the same way.
(4) If a prisoner brings in any drugs or medicine, the medical officer shall decide what use shall be made of them.
Notification of death, illness, transfer, etc.
44. (1) Upon the death or serious illness of, or serious injury to a prisoner, or his removal to an institution for the treatment of mental affections, the director shall at once inform the spouse, if the prisoner is married, or the nearest relative and shall in any event inform any other person previously designated by the prisoner.
(2) A prisoner shall be informed at once of the death or serious illness of any near relative. In case of the critical illness of a near relative, the prisoner should be authorized, whenever circumstances allow, to go to his bedside either under escort or alone.
(3) Every prisoner shall have the right to inform at once his family of his imprisonment or his transfer to another institution.
Removal of prisoners
45. (1) When the prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible, and proper safeguards shall be adopted to protect them from insult, curiosity and publicity in any form.
(2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited.
(3) The transport of prisoners shall be carried out at the expense of the administration and equal conditions shall obtain for all of them.
46. (1) The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of the institutions depends.
(2) The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.
(3) To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison officers and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.
47. (1) The personnel shall possess an adequate standard of education and intelligence.
(2) Before entering on duty, the personnel shall be given a course of training in their general and specific duties and be required to pass theoretical and practical tests.
(3) After entering on duty and during their career, the personnel shall maintain and improve their knowledge and professional capacity by attending courses of in-service training to be organized at suitable intervals.
48. All members of the personnel shall at all times so conduct themselves and perform their duties as to influence the prisoners for good by their example and to command their respect.
49. (1) So far as possible, the personnel shall include a sufficient number of specialists such as psychiatrists, psychologists, social workers, teachers and trade instructors.
(2) The services of social workers, teachers and trade instructors shall be secured on a permanent basis, without thereby excluding part-time or voluntary workers.
50. (1) The director of an institution should be adequately qualified for his task by character, administrative ability, suitable training and experience.
(2) He shall devote his entire time to his official duties and shall not be appointed on a part-time basis.
(3) He shall reside on the premises of the institution or in its immediate vicinity.
(4) When two or more institutions are under the authority of one director, he shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these institutions.
51. (1) The director, his deputy, and the majority of the other personnel of the institution shall be able to speak the language of the greatest number of prisoners, or a language understood by the greatest number of them.
(2) Whenever necessary, the services of an interpreter shall be used.
52. (1) In institutions which are large enough to require the services of one or more full-time medical officers, at least one of them shall reside on the premises of the institution or in its immediate vicinity.
(2) In other institutions the medical officer shall visit daily and shall reside near enough to be able to attend without delay in cases of urgency.
53. (1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.
54. (1) Officers of the institutions shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Officers who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the director of the institution.
(2) Prison officers shall be given special physical training to enable them to restrain aggressive prisoners.
(3) Except in special circumstances, staff performing duties which bring them into direct contact with prisoners should not be armed. Furthermore, staff should in no circumstances be provided with arms unless they have been trained in their use.
55. There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be in particular to ensure that these institutions are administered in accordance with existing laws and regulations and with a view to bringing about the objectives of penal and correctional services.
PART II: RULES APPLICABLE TO SPECIAL CATEGORIES
A. Prisoners under sentence
56. The guiding principles hereafter are intended to show the spirit in which penal institutions should be administered and the purposes at which they should aim, in accordance with the declaration made under Preliminary Observation 1 of the present text.
57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.
59. To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.
60. (1) The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.
(2) Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release ré gime organized in the same institution or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.
61. The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners. There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social agencies. Steps should be taken to safeguard, to the maximum extent compatible with the law and the sentence, the rights relating to civil interests, social security rights and other social benefits of prisoners.
62. The medical services of the institution shall seek to detect and shall treat any physical or mental illnesses or defects which may hamper a prisoner's rehabilitation. All necessary medical, surgical and psychiatric services shall be provided to that end.
63. (1) The fulfilment of these principles requires individualization of treatment and for this purpose a flexible system of classifying prisoners in groups; it is therefore desirable that such groups should be distributed in separate institutions suitable for the treatment of each group.
(2) These institutions need not provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. Open institutions, by the very fact that they provide no physical security against escape but rely on the self-discipline of the inmates, provide the conditions most favourable to rehabilitation for carefully selected prisoners.
(3) It is desirable that the number of prisoners in closed institutions should not be so large that the individualization of treatment is hindered. In some countries it is considered that the population of such institutions should not exceed five hundred. In open institutions the population should be as small as possible.
(4) On the other hand, it is undesirable to maintain prisons which are so small that proper facilities cannot be provided.
64. The duty of society does not end with a prisoner's release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient after-care directed towards the lessening of prejudice against him and towards his social rehabilitation.
65. The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose, so far as the length of the sentence permits, to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility.
66. (1) To these ends, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release.
(2) For every prisoner with a sentence of suitable length, the director shall receive, as soon as possible after his admission, full reports on all the matters referred to in the foregoing paragraph. Such reports shall always include a report by a medical officer, wherever possible qualified in psychiatry, on the physical and mental condition of the prisoner.
(3) The reports and other relevant documents shall be placed in an individual file. This file shall be kept up to date and classified in such a way that it can be consulted by the responsible personnel whenever the need arises.
Classification and individualization
67. The purposes of classification shall be:
(a) To separate from others those prisoners who, by reason of their criminal records or bad characters, are likely to exercise a bad influence;
(b) To divide the prisoners into classes in order to facilitate their treatment with a view to their social rehabilitation.
68. So far as possible separate institutions or separate sections of an institution shall be used for the treatment of the different classes of prisoners.
69. As soon as possible after admission and after a study of the personality of each prisoner with a sentence of suitable length, a programme of treatment shall be prepared for him in the light of the knowledge obtained about his individual needs, his capacities and dispositions.
70. Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every institution, in order to encourage good conduct, develop a sense of responsibility and secure the interest and cooperation of the prisoners in their treatment.
71. (1) Prison labour must not be of an afflictive nature.
(2) All prisoners under sentence shall be required to work, subject to their physical and mental fitness as determined by the medical officer.
(3) Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.
(4) So far as possible the work provided shall be such as will maintain or increase the prisoners' ability to earn an honest living after release.
(5) Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners.
(6) Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, the prisoners shall be able to choose the type of work they wish to perform.
72. (1) The organization and methods of work in the institutions shall resemble as closely as possible those of similar work outside institutions, so as to prepare prisoners for the conditions of normal occupational life.
(2) The interests of the prisoners and of their vocational training, however, must not be subordinated to the purpose of making a financial profit from an industry in the institution.
73. (1) Preferably institutional industries and farms should be operated directly by the administration and not by private contractors.
(2) Where prisoners are employed in work not controlled by the administration, they shall always be under the supervision of the institution's personnel. Unless the work is for other departments of the government the full normal wages for such work shall be paid to the administration by the persons to whom the labour is supplied, account being taken of the output of the prisoners.
74. (1) The precautions laid down to protect the safety and health of free workmen shall be equally observed in institutions.
(2) Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to free workmen.
75. (1) The maximum daily and weekly working hours of the prisoners shall be fixed by law or by administrative regulation, taking into account local rules or custom in regard to the employment of free workmen.
(2) The hours so fixed shall leave one rest day a week and sufficient time for education and other activities required as part of the treatment and rehabilitation of the prisoners.
76. (1) There shall be a system of equitable remuneration of the work of prisoners.
(2) Under the system prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and to send a part of their earnings to their family.
(3) The system should also provide that a part of the earnings should be set aside by the administration so as to constitute a savings fund to be handed over to the prisoner on his release.
Education and recreation
77. (1) Provision shall be made for the further education of all prisoners capable of profiting thereby, including religious instruction in the countries where this is possible. The eduction of illiterates and young prisoners shall be compulsory and special attention shall be paid to it by the administration;
(2) So far as practicable, the education of prisoners shall be integrated with the educational system of the country so that after their release they may continue their education without difficulty.
78. Recreational and cultural activities shall be provided in all institutions for the benefit of the mental and physical health of prisoners.
Social relations and after-care
79. Special attention shall be paid to the maintenance and improvement of such relations between a prisoner and his family as are desirable in the best interests of both.
80. From the beginning of a prisoner's sentence consideration shall be given to his future after release and he shall be encouraged and assisted to maintain or establish such relations with persons or agencies outside the institution as may promote the best interests of his family and his own social rehabilitation.
81. (1) Services and agencies, governmental or otherwise, which assist released prisoners to re-establish themselves in society shall ensure, so far as is possible and necessary, that released prisoners be provided with appropriate documents and identification papers, have suitable homes and work to go to, are suitably and adequately clothed having regard to the climate and season, and have sufficient means to reach their destination and maintain themselves in the period immediately following their release.
(2) The approved representatives of such agencies shall have all necessary access to the institution and to prisoners and shall be taken into consultation as to the future of a prisoner from the beginning of his sentence.
(3) It is desirable that the activities of such agencies shall be centralized or coordinated as far as possible in order to secure the best use of their efforts.
B. Insane and mentally abnormal prisoners
82. (1) Persons who are found to be insane shall not be detained in prisons and arrangements shall be made to remove them to mental institutions as soon as possible.
(2) Prisoners who suffer from other mental diseases or abnormalities shall be observed and treated in specialized institutions under medical management.
(3) During their stay in a prison, such prisoners shall be placed under the special supervision of a medical officer.
(4) The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
83. It is desirable that steps should be taken, by arrangement with the appropriate agencies, to ensure if necessary the continuation of psychiatric treatment after release and the provision of social-psychiatric after-care.
C. Prisoners under arrest or awaiting trial
84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as "untried prisoners" hereinafter in these rules.
(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.
(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.
85. (1) Untried prisoners shall be kept separate from convicted prisoners.
(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.
86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.
87. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.
88. (1) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.
(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.
89. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.
90. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.
91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.
92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.
93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.
D. Civil prisoners
94. In countries where the law permits imprisonment for debt, or by order of a court under any other non-criminal process, persons so imprisoned shall not be subjected to any greater restriction or severity than is necessary to ensure safe custody and good order. Their treatment shall be not less favourable than that of untried prisoners, with the reservation, however, that they may possibly be required to work.
E. Persons arrested or detained without charge
95. Without prejudice to the provisions of article 9 of the International Covenant on Civil and Political Rights, persons arrested or imprisoned without charge shall be accorded the same protection as that accorded under part I and part II, section C. Relevant provisions of part II, section A, shall likewise be applicable where their application may be conducive to the benefit of this special group of persons in custody, provided that no measures shall be taken implying that re-education or rehabilitation is in any way appropriate to persons not convicted of any criminal offence.
Measures (The Tokyo Rules)
Bearing in Mind the Universal Declaration of Human Rights 1 and the International Covenant on Civil and Political Rights, 2 as well as other international human rights instruments pertaining to the rights of persons in conflict with the law,
Bearing in mind also the Standard Minimum Rules for the Treatment of Prisoners, 3 adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, and the important contribution of those Rules to national policies and practices,
Recalling resolution 8 of the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders 4 on alternatives to imprisonment,
Recalling also resolution 16 of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders 5 on the reduction of the prison population, alternatives to imprisonment, and social integration of offenders,
Recalling further section XI of Economic and Social Council resolution 1986/10 of 21 May 1986, on alternatives to imprisonment, in which the Secretary-General was requested to prepare a report on alternatives to imprisonment for the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders and to study that question with a view to the formulation of basic principles in that area, with the assistance of the United Nations institutes for the prevention of crime and the treatment of offenders,
Recognizing the need to develop local, national, regional and international approaches and strategies in the field of non-institutional treatment of offenders and the need to formulate standard minimum rules, as emphasized in the section of the report of the Committee on Crime Prevention and Control on its fourth session, concerning the methods and measures likely to be most effective in preventing crime and improving the treatment of offenders, 6
Convinced that alternatives to imprisonment can be an effective means of treating offenders within the community to the best advantage of both the offenders and society,
Aware that the restriction of liberty is justifiable only from the viewpoints of public safety, crime prevention, just retribution and deterrence and that the ultimate goal of the criminal justice system is the reintegration of the offender into society,
Emphasizing that the increasing prison population and prison overcrowding in many countries constitute factors that create difficulties for the proper implementation of the Standard Minimum Rules for the Treatment of Prisoners,
Noting with-appreciation the work accomplished by the Committee on Crime Prevention and Control, as well as by the Interregional Preparatory Meeting for the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders on topic II, "Criminal justice policies in relation to problems of imprisonment, other penal sanctions and alternative measures", and by the regional preparatory meetings for the Eighth Congress,
Expressing its gratitude to the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders for the work accomplished in the development of standard minimum rules for non-custodial measures, as well as to the various intergovernmental and non-governmental organizations involved, in particular, the International Penal and Penitentiary Foundation for its contribution to the preparatory work,
1. Adopts the United Nations Standard Minimum Rules for Non-custodial Measures, contained in the annex to the present resolution, and approves the recommendation of the Committee on Crime Prevention and Control that the Rules should be known as "the Tokyo Rules";
2. Recommends the Tokyo Rules for implementation at the national, regional and interregional levels, taking into account the political, economic, social and cultural circumstances and traditions of countries;
3. Calls upon Member States to apply the Tokyo Rules in their policies and practice;
4. Invites Member States to bring the Tokyo Rules to the attention of, in particular, law enforcement officials. prosecutors, judges, probation officers, lawyers, victims, offenders, social services and non-governmental organizations involved in the application of non-custodial measures, as well as members of the executive, the legislature and the general public;
5. Requests Member States to report on the implementation of the Tokyo Rules every five years, beginning in 1994;
6. Urges the regional commissions, the United Nations institutes for the prevention of crime and the treatment of offenders, specialized agencies and other entities within the United Nations system, other intergovernmental organizations concerned and non-governmental organizations in consultative status with the Economic and Social Council to be actively involved in the implementation of the Tokyo Rules;
7. Calls upon the Committee on Crime Prevention and Control to consider, as a matter of priority, the implementation of the present resolution;
8. Requests the Secretary-General to take the necessary steps to prepare a commentary to the Tokyo Rules, which is to be submitted to the Committee on Crime Prevention and Control at its twelfth session for approval and further dissemination, paying special attention to the legal safeguards, the implementation of the Rules and the development of similar guidelines at the regional level;
9. Invites the United Nations institutes for the prevention of crime and the treatment of offenders to assist the Secretary-General in that task;
10. Urges intergovernmental and non-governmental organizations and other entities concerned to remain actively involved in this initiative;
11. Requests the Secretary-General to take steps, as appropriate, to ensure the widest possible dissemination of the Tokyo Rules, including their transmission to Governments, interested intergovernmental and non-governmental organizations and other parties concerned;
12. Also requests the Secretary-General to prepare every five years, beginning in 1994, a report on the implementation of the Tokyo Rules for submission to the Committee on Crime Prevention and Control;
13. Further requests the Secretary-General to assist Member States, at their request, in the implementation of the Tokyo Rules and to report regularly thereon to the Committee on Crime Prevention and Control;
14. Requests that the present resolution and the text of the annex be brought to the attention of all United Nations bodies concerned and be included in the next edition of the United Nations publication entitled Human Rights: A Compilation of International Instruments.
United Nations Standard Minimum Rules for Non-custodial
Measures (The Tokyo Rules)
I. GENERAL PRINCIPLES
1. Fundamental aims
1.2 The Rules are intended to promote greater community involvement in the management of criminal justice, specifically in the treatment of offenders, as well as to promote among offenders a sense of responsibility towards society.
1.3 The Rules shall be implemented taking into account the political, economic, social and cultural conditions of each country and the aims and objectives of its criminal justice system.
1.4 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.
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.
2. The scope of non-custodial measures
2.1 The relevant provisions of the present Rules shall be applied to all persons subject to prosecution, trial or the execution of a sentence, at all stages of the administration of criminal justice. For the purposes of the Rules, these persons are referred to as "offenders", irrespective of whether they are suspected, accused or sentenced.
2.2 The 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.
2.3 In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions. The number and types of non-custodial measures available should be determined in such a way that consistent sentencing remains possible.
2.4 The development of new non-custodial measures should be encouraged and closely monitored and their use systematically evaluated.
2.5 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.
2.6 Non-custodial measures should be used in accordance with the principle of minimum intervention.
2.7 The use of non-custodial measures should be part of the movement towards depenalization and decriminalization instead of interfering with or delaying efforts in that direction.
3.2 The selection of a noncustodial measure shall be based on an assessment of Established criteria in respect of both the nature and gravity of the offence and the personality, the background of the offender, the purposes of sentencing and the rights of victims.
3.3 Discretion by the judicial or other competent Independent authority shall be exercised at all stages of the proceedings by ensuring full accountability and only in accordance with the rule of law.
3.4 Non-custodial measures imposing an obligation on the offender, applied before or instead of formal proceedings or trial, shall require the offender's consent.
3.5 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.
3.6 The offender shall be entitled to make a request or complaint to a judicial . or other competent independent authority on matters affecting his or her individual rights in the implementation of non-custodial measures.
3.7 Appropriate machinery shall be provided for the recourse and, if possible, redress of any grievance related to non-compliance with internationally recognized human rights.
3.8 Non-custodial measures shall not involve medical or psychological experimentation on, or undue risk of physical or mental injury to, the offender.
3.9 The dignity of the offender subject to non-custodial measures shall be protected at all times.
3.10 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.
3.11 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.
3.12 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.
5. Pre-trial dispositions
6. Avoidance of pre-trial detention
6.1 Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.
6.2 Alternatives to pre-trial detention shall be employed at as early a stage as possible. Pre-trial detention shall last no longer than necessary to achieve the objectives stated under rule 5.1 and shall be administered humanely and with respect for the inherent dignity of human beings.
6.3 The offender shall have the right to appeal to a judicial or other competent independent authority in cases where pre-trial detention is employed.
7. Social inquiry resorts
9. Post-sentencing dispositions
9.2 Post-sentencingdispositions may include:
9.4 Any form of release from an institution to a non-custodial programme shall be considered at the earliest possible stage.
10.2 If a non-custodial measure entails supervision, the latter shall be carried out by a competent authority under the specific conditions prescribed by law.
10.3 Within the framework of a given non-custodial measure, the most suitable type of supervision and treatment should be determined for each individual case aimed at assisting the offender to work on his ' or her offending. Supervision and treatment should be periodically reviewed and adjusted as necessary.
10.4 Offenders should, when needed, be provided with psychological, social and material assistance and with opportunities to strengthen links with the community and facilitate their reintegration into society.
11.2 Provision may be made for early termination of the measure if the offender has responded favourably to it.
12.2 The conditions to be observed shall be practical, precise and as few as possible, and shall be aimed at reducing the likelihood of an offender relapsing into criminal behaviour and at increasing the offender's chances of social integration, taking into account the needs of the victim.
12.3 At the beginning of the application of a non-custodial measure, the offender shall receive an explanation, orally and in writing, of the conditions governing the application of the measure, including the offender's obligations and rights.
12.4 The conditions may be modified by the competent authority under the established statutory provisions, in accordance with the progress made by the offender.
13.2 Treatment should be conducted by professionals who have suitable training and practical experience.
13.3 When it is decided that treatment is necessary, efforts should be made to understand the offender's background, personality, aptitude, intelligence, values and, especially, the circumstances leading to the commission of the offence.
13.4 The competent authority may involve the community and social support systems in the application of non-custodial measures.
13.5 Caseload assignments shall be maintained as far as practicable at a manageable level to ensure the effective implementation of treatment programmes.
13.6 For each offender, a case record shall be established and maintained by the competent authority.
14.2 The modification or revocation of the non-custodial measure shall be made by the competent authority; this shall be done only after a careful examination of the facts adduced by both the supervising officer and the offender.
14.3 The failure of a non-custodial measure should not automatically lead to the imposition of a custodial measure.
14.4 In the event of a modification or revocation of the non-custodial measure, the competent authority shall attempt to establish a suitable alternative non-custodial measure. A sentence of imprisonment may be imposed only in the absence of other suitable alternatives.
14.5 The power to arrest and detain the offender under supervision in cases where there is a breach of the conditions shall be prescribed by law.
14.6 Upon modification or revocation of the non-custodial measure, the offender shall have the right to appeal to a judicial or other competent independent authority.
15.2 Persons appointed to apply non-custodial measures should be personally suitable and, whenever possible, have appropriate professional training and practical experience. Such qualifications shall be clearly specified.
15.3 To secure and retain qualified professional staff, appropriate service status, adequate salary and benefits commensurate with the nature of the work should be ensured and ample opportunities should be provided for professional growth and career development.
16.2 Before entering duty, staff shall be given training that includes instruction on the nature of non-custodial measures, the purposes of supervision and the various modalities of the application of non-custodial measures.
16.3 After entering on duty, staff shall maintain and improve their knowledge and professional capacity by attending in-service training and refresher courses. Adequate facilities shall be made available for that purpose.
17. Public participation
17.2 Public participation should be regarded as an opportunity for members of the community to contribute to the protection of their society.
18.2 Conferences, seminars, symposia and other activities should be regularly organized to stimulate awareness of the need for public participation in the application of non-custodial measures.
18.3 All forms of the mass media should be utilized to help to create a constructive public attitude, leading to activities conducive to a broader application of non-custodial treatment and the social integration of offenders.
18.4 Every effort should be made to inform the public of the importance of its role in the implementation of non-custodial measures.
19.2 Volunteers should encourage offenders and their families to develop meaningful ties with the community and a broader sphere of contact by providing counselling and other appropriate forms of assistance according to their capacity and the offenders' needs.
19.3 Volunteers shall be insured against accident, injury and public liability when carrying out their duties. They shall be reimbursed for authorized expenditures incurred in the course of their work. Public recognition should be extended to them for the services they render for the well-being of the community.
20. Research and planning
20.2 Research on the problems that confront clients, practitioners, the community and policy makers should be carried out on a regular basis.
20.3 Research and information mechanisms should be built into the criminal justice system for the collection and analysis of data and statistics on the implementation of non-custodial treatment for offenders.
21.2 Regular evaluations should be carried out with a view to implementing non-custodial measures more effectively.
21.3 Periodic reviews should be conducted to access the objectives, functioning and effectiveness of non-custodial measures.
23.2 Comparative studies and the harmonization of legislative provisions should be furthered to expand the range of non-institutional options and facilitate their application across national frontiers, in accordance with the Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released.
1/ Resolution 217 A (III).
2/ See Resolution 2200 A (XXI), annex.
3/ See Human Rights: A Compilation of International Instruments (United Nations publication, Sales No. E.88.XIV.1), sect. G.
4/ See Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Caracas, 25 August – 5 September 1980: report prepared by the Secretariat (United Nations publication, Sales No. E.81.IV.4), chap. I, sect. B.
5/ See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August - 6 September 1985: report prepared by the Secretariat (United Nations publication, Sales No. E.86.IV.1), chap. I, sect. E.
6/ E/CN.5/536, annex IV.
7/ Resolution 40/33, annex.
8/ Resolution 40/173, annex.