Form No.49a Download
Danny Hosford
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United Nations Standard Minimum Rules for Non-custodial Measures (TheTokyo Rules), G.A. res. 45/110, annex, 45 U.N. GAOR Supp. (No. 49A) at 197, U.N. Doc.A/45/49 (1990).I. GENERAL PRINCIPLES1. Fundamental aims1.1 The present Standard Minimum Rules provide a set of basicprinciples to promote the use of non-custodial measures, as wellas minimum safeguards for persons subject to alternatives toimprisonment. 1.2 The Rules are intended to promote greater communityinvolvement in the management of criminal justice, specificallyin the treatment of offenders, as well as to promote amongoffenders a sense of responsibility towards society. 1.3 The Rules shall be implemented taking into account thepolitical, economic, social and cultural conditions of eachcountry and the aims and objectives of its criminal justicesystem. 1.4 When implementing the Rules, Member States shall endeavour toensure a proper balance between the rights of individualoffenders, the rights of victims, and the concern of society forpublic safety and crime prevention. 1.5 Member States shall develop non-custodial measures withintheir legal systems to provide other options, thus reducing theuse of imprisonment, and to rationalize criminal justicepolicies, taking into account the observance of human rights, therequirements of social justice and the rehabilitation needs ofthe offender. 2. The scope of non-custodial measures2.1 The relevant provisions of the present Rules shall be appliedto all persons subject to prosecution, trial or the execution ofa sentence, at all stages of the administration of criminaljustice. For the purposes of the Rules, these persons arereferred to as "offenders", irrespective of whether they aresuspected, accused or sentenced. 2.2 The Rules shall be applied without any discrimination on thegrounds of race, colour, sex, age, language, religion, politicalor other opinion, national or social origin, property, birth orother status. 2.3 In order to provide greater flexibility consistent with thenature and gravity of the offence, with the personality andbackground of the offender and with the protection of society andto avoid unnecessary use of imprisonment, the criminal justicesystem should provide a wide range of non-custodial measures,from pre-trial to post-sentencing dispositions. The number andtypes of non-custodial measures available should be determined insuch a way so that consistent sentencing remains possible. 2.4 The development of new non-custodial measures should beencouraged and closely monitored and their use systematicallyevaluated. 2.5 Consideration shall be given to dealing with offenders in thecommunity avoiding as far as possible resort to formalproceedings or trial by a court, in accordance with legalsafeguards and the rule of law. 2.6 Non-custodial measures should be used in accordance with theprinciple of minimum intervention. 2.7 The use of non-custodial measures should be part of themovement towards depenalization and decriminalization instead ofinterfering with or delaying efforts in that direction. 3. Legal safeguards3.1 The introduction, definition and application of non-custodialmeasures shall be prescribed by law. 3.2 The selection of a non-custodial measure shall be based on anassessment of established criteria in respect of both the natureand gravity of the offence and the personality, background of theoffender, the purposes of sentencing and the rights of victims. 3.3 Discretion by the judicial or other competent independentauthority shall be exercised at all stages of the proceedings byensuring full accountability and only in accordance with the ruleof law. 3.4 Non-custodial measures imposing an obligation on theoffender, applied before or instead of formal proceedings ortrial , shall require the offender's consent. 3.5 Decisions on the imposition of non-custodial measures shallbe subject to review by a judicial or other competent independentauthority, upon application by the offender. 3.6 The offender shall be entitled to make a request or complaintto a judicial or other competent independent authority on mattersaffecting his or her individual rights in the implementation ofnon-custodial measures. 3.7 Appropriate machinery shall be provided for the recourse and,if possible, redress of any grievance related to non-compliancewith internationally recognized human rights. 3.8 Non-custodial measures shall not involve medical orpsychological experimentation on, or undue risk of physical ormental injury to, the offender. 3.9 The dignity of the offender subject to non-custodial measuresshall be protected at all times. 3.10 In the implementation of non-custodial measures, theoffender's rights shall not be restricted further than wasauthorized by the competent authority that rendered the originaldecision. 3.11 In the application of non-custodial measures, the offender'sright to privacy shall be respected, as shall be the right toprivacy of the offender's family. 3.12 The offender's personal records shall be kept strictlyconfidential and closed to third parties. Access to such recordsshall be limited to persons directly concerned with thedisposition of the offender's case or to other duly authorizedpersons. 4. Saving clause4.1 Nothing in these Rules shall be interpreted as precluding theapplication of the Standard Minimum Rules for the Treatment ofPrisoners, the United Nations Standard Minimum Rules for theAdministration of Juvenile Justice, the Body of Principles forthe Protection of All Persons under Any Form of Detention orImprisonment or any other human rights instruments and standardsrecognized by the international community and relating to thetreatment of offenders and the protection of their basic humanrights. II. PRE-TRIAL STAGE5. Pre-trial dispositions5.1 Where appropriate and compatible with the legal system, thepolice, the prosecution service or other agencies dealing withcriminal cases should be empowered to discharge the offender ifthey consider that it is not necessary to proceed with the casefor the protection of society, crime prevention or the promotionof respect for the law and the rights of victims. For the purposeof deciding upon the appropriateness of discharge ordetermination of proceedings, a set of established criteria shallbe developed within each legal system. For minor cases theprosecutor may impose suitable noncustodial measures, asappropriate. 6. Avoidance of pre-trial detention 6.1 Pre-trial detention shall be used as a means of last resortin criminal proceedings, with due regard for the investigation ofthe alleged offence and for the protection of society and thevictim. 6.2 Alternatives to pre-trial detention shall be employed at asearly a stage as possible. Pre-trial detention shall last nolonger than necessary to achieve the objectives stated under rule 5.1 and shall be administered humanely and with respect for theinherent dignity of human beings. 6.3 The offender shall have the right to appeal to a judicial orother competent independent authority in cases where pre-trialdetention is employed. III. TRIAL AND SENTENCING STAGE7. Social inquiry reports7.1 If the possibility of social inquiry reports exists, thejudicial authority may avail itself of a report prepared by acompetent, authorized official or agency . The report shouldcontain social information on the offender that is relevant tothe person's pattern of offending and current offences. It shouldalso contain information and recommendations that are relevant tothe sentencing procedure. The report shall be factual, objectiveand unbiased, with any expression of opinion clearly identified. 8. Sentencing dispositions8.1 The judicial authority, having at its disposal a range ofnoncustodial measures, should take into consideration in makingits decision the rehabilitative needs of the offender, theprotection of society and the interests of the victim, who shouldbe consulted whenever appropriate. 8.2 Sentencing authorities may dispose of cases in the followingways: (a) Verbal sanctions, such as admonition, reprimand and warning; (b) Conditional discharge; (c) Status penalties; (d) Economic sanctions and monetary penalties, such as fines andday-fines; (e) Confiscation or an expropriation order; (f) Restitution to the victim or a compensation order; (g) Suspended or deferred sentence; (h) Probation and judicial supervision; (i) A community service order; (j) Referral to an attendance centre; (k) House arrest; (l) Any other mode of non-institutional treatment; (m) Some combination of the measures listed above. IV. POST-SENTENCING STAGE9. Post-sentencing dispositions
9.1 The competent authority shall have at its disposal a widerange of post-sentencing alternatives in order to avoidinstitutionalization and to assist offenders in their earlyreintegration into society. 9.2 Post-sentencing dispositions may include: (a) Furlough and half-way houses; (b) Work or education release; (c) Various forms of parole; (d) Remission; (e) Pardon. 9.3 The decision on post-sentencing dispositions, except in thecase of pardon, shall be subject to review by a judicial or othercompetent independent authority, upon application of theoffender. 9.4 Any form of release from an institution to a non-custodialprogramme shall be considered at the earliest possible stage. V. IMPLEMENTATION OF NON-CUSTODIAL MEASURES10. Supervision10.1 The purpose of supervision is to reduce reoffending and toassist the offender's integration into society in a way whichminimizes the likelihood of a return to crime. 10.2 If a non-custodial measure entails supervision, the lattershall be carried out by a competent authority under the specificconditions prescribed by law. 10.3 Within the framework of a given non-custodial measure, themost suitable type of supervision and treatment should bedetermined for each individual case aimed at assisting theoffender to work on his or her offending. Supervision andtreatment should be periodically reviewed and adjusted asnecessary. 10.4 Offenders should, when needed, be provided withpsychological, social and material assistance and withopportunities to strengthen links with the community andfacilitate their reintegration into society. 11. Duration11.1 The duration of a non-custodial measure shall not exceed theperiod established by the competent authority in accordance withthe law. 11.2 Provision may be made for early termination of the measureif the offender has responded favourably to it. 12. Conditions12.1 If the competent authority shall determine the conditions tobe observed by the offender, it should take into account both theneeds of society and the needs and rights of the offender and thevictim. 12.2 The conditions to be observed shall be practical, preciseand as few as possible, and be aimed at reducing the likelihoodof an offender relapsing into criminal behaviour and ofincreasing the offender's chances of social integration, takinginto account the needs of the victim. 12.3 At the beginning of the application of a non-custodialmeasure, the offender shall receive an explanation, orally and inwriting, of the conditions governing the application of themeasure, including the offender's obligations and rights. 12.4 The conditions may be modified by the competent authorityunder the established statutory provisions, in accordance withthe progress made by the offender. 13. Treatment process13.1 Within the framework of a given non-custodial measure, inappropriate cases, various schemes, such as case-work, grouptherapy, residential programmes and the specialized treatment ofvarious categories of offenders, should be developed to meet theneeds of offenders more effectively. 13.2 Treatment should be conducted by professionals who havesuitable training and practical experience. 13.3 When it is decided that treatment is necessary, effortsshould be made to understand the offender's background,personality, aptitude, intelligence, values and, especially, thecircumstances leading to the commission of the offence. 13.4 The competent authority may involve the community and socialsupport systems in the application of non-custodial measures. 13.5 Case-load assignments shall be maintained as far aspracticable at a manageable level to ensure the effectiveimplementation of treatment programmes. 13.6 For each offender, a case record shall be established andmaintained by the competent authority. 14. Discipline and breach of conditions14.1 A breach of the conditions to be observed by the offendermay result in a modification or revocation of the non-custodialmeasure. 14.2 The modification or revocation of the non-custodial measureshall be made by the competent authority; this shall be done onlyafter a careful examination of the facts adduced by both thesupervising officer and the offender. 14.3 The failure of a non-custodial measure should notautomatically lead to the imposition of a custodial measure. 14.4 In the event of a modification or revocation of thenon-custodial measure, the competent authority shall attempt toestablish a suitable alternative non-custodial measure. Asentence of imprisonment may be imposed only in the absence ofother suitable alternatives. 14.5 The power to arrest and detain the offender undersupervision in cases where there is a breach of the conditionsshall be prescribed by law. 14.6 Upon modification or revocation of the non-custodialmeasure, the offender shall have the right to appeal to ajudicial or other competent independent authority. VI. STAFF15. Recruitment15.1 There shall be no discrimination in the recruitment of staffon the grounds of race, colour, sex, age, language, religion,political or other opinion, national or social origin, property,birth or other status. The policy regarding staff recruitmentshould take into consideration national policies of affirmativeaction and reflect the diversity of the offenders to besupervised. 15.2 Persons appointed to apply non-custodial measures should bepersonally suitable and, whenever possible, have appropriateprofessional training and practical experience. Suchqualifications shall be clearly specified. 15.3 To secure and retain qualified professional staff,appropriate service status, adequate salary and benefitscommensurate with the nature of the work should be ensured andample opportunities should be provided for professional growthand career development. 16. Staff training16.1 The objective of training shall be to make clear to stafftheir responsibilities with regard to rehabilitating theoffender, ensuring the offender's rights and protecting society.Training should also give staff an understanding of the need tocooperate in and coordinate activities with the agenciesconcerned. 16.2 Before entering duty, staff shall be given training thatincludes instruction on the nature of non-custodial measures, thepurposes of supervision and the various modalities of theapplication of non-custodial measures. 16.3 After entering duty, staff shall maintain and improve theirknowledge and professional capacity by attending in-servicetraining and refresher courses. Adequate facilities shall be madeavailable for that purpose. VII. VOLUNTEERS AND OTHER COMMUNITY RESOURCES17. Public participation17.1 Public participation should be encouraged as it is a majorresource and one of the most important factors in improving tiesbetween offenders undergoing non-custodial measures and thefamily and community. It should complement the efforts of thecriminal justice administration. 17.2 Public participation should be regarded as an opportunityfor members of the community to contribute to the protection oftheir society. 18. Public understanding and cooperation18.1 Government agencies, the private sector and the generalpublic should be encouraged to support voluntary organizationsthat promote noncustodial measures. 18.2 Conferences, seminars, symposia and other activities shouldbe regularly organized to stimulate awareness of the need forpublic participation in the application of non-custodialmeasures. 18.3 All forms of the mass media should be utilized to help tocreate a constructive public attitude, leading to activitiesconducive to a broader application of non-custodial treatment andthe social integration of offenders. 18.4 Every effort should be made to inform the public of theimportance of its role in the implementation of non-custodialmeasures. 19. Volunteers19.1 Volunteers shall be carefully screened and recruited on thebasis of their aptitude for and interest in the work involved.They shall be properly trained for the specific responsibilitiesto be discharged by them and shall have access to support andcounselling from, and the opportunity to consult with, thecompetent authority. 19.2 Volunteers should encourage offenders and their families todevelop meaningful ties with the community and a broader sphereof contact by providing counselling and other appropriate formsof assistance according to their capacity and the offenders'needs. 19.3 Volunteers shall be insured against accident, injury andpublic liability when carrying out their duties. They shall bereimbursed for authorized expenditures incurred in the course oftheir work. Public recognition should be extended to them for theservices they render for the well-being of the community. VIII. RESEARCH, PLANNING, POLICY FORMULATION AND EVALUATION20. Research and planning20.1 As an essential aspect of the planning process, effortsshould be made to involve both public and private bodies in theorganization and promotion of research on the non-custodialtreatment of offenders. 20.2 Research on the problems that confront clients,practitioners, the community and policy-makers should be carriedout on a regular basis. 20.3 Research and information mechanismsshould be built into the criminal justice system for thecollection and analysis of data and statistics on theimplementation of non-custodial treatment for offenders. 21. Policy formulation and programme development21.1 Programmes for non-custodial measures should besystematically planned and implemented as an integral part of thecriminal justice system within the national development process. 21.2 Regular evaluations should be carried out with a view toimplementing non-custodial measures more effectively . 21.3 Periodic reviews should be concluded to assess theobjectives, functioning and effectiveness of non-custodialmeasures. 22. Linkages with relevant agencies and activities22.1 Suitable mechanisms should be evolved at various levels tofacilitate the establishment of linkages between servicesresponsible for noncustodial measures, other branches of thecriminal justice system, social development and welfare agencies,both governmental and non-governmental, in such fields as health,housing, education and labour, and the mass media. 23. International cooperation23.1 Efforts shall be made to promote scientific cooperationbetween countries in the field of non-institutional treatment.Research, training, technical assistance and the exchange ofinformation among Member States on non-custodial measures shouldbe strengthened, through the United Nations institutes for theprevention of crime and the treatment of offenders, in closecollaboration with the Crime Prevention and Criminal JusticeBranch of the Centre for Social Development and HumanitarianAffairs of the United Nations Secretariat. 23.2 Comparative studies and the harmonization of legislativeprovisions should be furthered to expand the range ofnon-institutional options and facilitate their application acrossnational frontiers, in accordance with the Model Treaty on theTransfer of Supervision of Offenders Conditionally Sentenced orConditionally Released.