888888

Background
The Argentine Republic is divided into 23 provinces and its capitol is located at Buenos
Aires. [1] In 1816, Argentina along with Uruguay, Paraguay, and Bolivia declared
independence from the Spanish Empire. From independence until the mid-20th century,
Argentina enjoyed a relatively peaceful period characterized by Pronist populism and
steady immigration. However, in 1976 democracy fell to a military dictatorship that
retained power through the use of political violence, kidnappings, and other oppressive
tactics. After democracy returned in 1983, Argentina continued to suffer economic
decline and hyperinflation well into the early 2000s. 97% of the Argentine population is
of Italian or Spanish descent, with 92% of the population identifying as Roman
Catholic. [2]
Type of System
The legal system in Argentina is a mixed system of US and French law. The sources of
all Argentine laws stem from the rules of criminal procedures which are compiled in the
Code of Criminal Procedure. This code is used by the national criminal courts in Buenos
Aires when prosecuting both non-federal and federal criminal offenses. According to the
Argentine Constitution, state courts have the final say on all interpretations of state
codes of criminal procedure. [3]
Sources of Defendants' Rights
The Argentine National Constitution defends the rights of the individual from actions
taken by either federal or provincial governments. However, these constitutional rights
that constrain the police are subject to rulings made by the Supreme Court, which may
make decisions with a large degree of authority. Additionally, Argentina has ratified the
American Convention on Human Rights, a convention that has become significant in
establishing standards of due process.[4]
Pre-Trial Phase
In Article 18, the National Constitution states that no one should be arrested except
upon a written order issued by a competent authority. [5] Whereas the Constitution
provides strong protection against arbitrary arrests, the rules of criminal procedure state
that the police have the authority to stop, detain, or arrest anyone without a written order
as long as that person is exhibiting guilty behavior. Additionally, Article 18 states that
private residences, personal communications, and other private documents cannot be
searched, seized, or violated without a statute that details when violations should be
permitted. [6] The same article guarantees that nobody should be made to testify against
themselves. [7]
Court Procedures
In Argentina, every investigation is the responsibility of the investigative magistrate who
can assign the responsibility to a prosecutor.[8] The detention of the accused begins the
process of arraignment and a judicial interrogation takes place in order to discern the
accused persons version of the event. [9] The Code of Criminal Procedure also states
that the accused/detained must be informed of his right to legal counsel before the
interrogation begins. Only the prosecutor and the defense counsel may attend the
hearing at which the accused is interrogated. At no time can the accused be physically
made to speak and at no time is he under oath.[10] In the event that the accused is kept
in incommunicado detention by the police, the detention cannot exceed six hours and
the accused must be submitted for a medical evaluation after the detention ends. If the
investigative magistrate authorizes the detention, the detention may last forty-eight
hours with a possible twenty-four hour extension. [11] Once the judicial interrogation has
taken place, the investigative magistrate has ten days to decide whether there is
sufficient evidence that a crime has been committed and whether the accused
participated in the crime. If the evidence is insufficient enough to implicate the
defendant, he must be released.[12] In Argentine courts, the granting of bail depends not
on the evidence against the defendant, but on the seriousness of the crime committed.
However, the granting of bail does not change the course of the investigation or trial in
any way.[13]
In the event that a trial severely departs from Argentine criminal procedure (such as an
investigative magistrate forcing a defendant to testify under oath), any party may
request that the offending act be held null and void and stricken from the record. [14] In
terms of discovery, all parties are given the right to access police files and reports as
soon as the judicial interrogation has finished. However, Argentine procedural code also
dictates that the investigative magistrate may declare that pre-trial proceedings may not
be disclosed during the first ten days of the investigation. [15]
Through the adoption of the Code of Criminal Procedure in 1993, Argentina introduced
the practice of concentrated and oral trial conducted by a panel of three judges. Before
the introduction of this reform, the federal criminal proceedings in Argentina consisted
mainly of written motions and intermittent interlocutory decisions. The nature of
Argentine trials remains largely inquisitive in the sense that the trial courts have the
ability to request additional evidence if that evidence will serve to further clarify the
case.[16]
The defendant is not required to speak under oath and his refusal to speak may not be
commented on at trial. The defendant may not be charged with perjury for lying during
interrogation; however, the defendants dishonesty may be used to impeach his
character, which can affect the final judgment. The defendant also has the right to call
any witnesses to his defense and to cross-examine that witness. [17]
The Argentine Constitution entitles every defendant the right to legal representation of
their choice, and if a defendant is not able to acquire representation, the State will
assign them a public defender. Prosecutors in Argentina are not adversarial in nature,
but instead act similarly to the judiciary. In this sense, they serve more as neutral
decision makers.[18]
At both the pre-trial and trial stages, expert witnesses are selected from a list of official
expert witnesses. The prosecutor, defendant, or the victim may hire their own expert
witness, but the witness must be paid for by the appointing party.[19]
The victim of a crime has the right under the Argentine Constitution to retain an attorney
in order to prosecute an accused person. In this situation, there will be a victim
prosecutor and a prosecutor, in which case the prosecutor will have technical
responsibility for the case but the victim prosecutor will lead the actual prosecution. The
victim may also seek compensation or awards for damages, thus making the victim a
civil party within the criminal proceedings.[20]
Both state and federal level judges are non-elected officials who must serve for life.
These judges are appointed by the Argentine executive branch and are approved by
either the Senate or the state legislature, depending on whether they are state or
federal level judges. A panel of three judges presides over each trial and there is no jury.
Both the Argentine Constitution and the 1994 amendment to the Code of Criminal
Procedure state that trial by jury is ideal and desirable. However, the Argentine
Congress has yet to enforce this amendment.[21]
The defendant is able to appeal a ruling of the investigative magistrate, but only against
those that are indicated by law (such as rulings of dismissals). Appeals that are made
against rulings of an investigative magistrate must be brought before an intermediate
court of appeals within three days, while appeals against a trial court must be brought
before the Criminal Court of Cassation within ten days. [22] Finally, Argentine Criminal
Code specifies that a defendant is only permitted to appeal a conviction if the sentence
exceeds three years, if there is a suspension of practicing a certain profession for more
than five years, or if a fine exceeding a certain amount is involved. [23]
References
1. CIA World Factbook, available at www.cia.gov/library/publications/the-worldfactboook
2. CIA World Factbook, available at www.cia.gov/library/publications/the-worldfactboook
3. Craig M. Bradley, Criminal Procedure A Worldwide Study 3 ( 2d ed., Carolina
Academic Press 2007)
4. Craig M. Bradley, Criminal Procedure A Worldwide Study 4, 7 ( 2d ed., Carolina

17. Craig M. Bradley, Criminal Procedure A Worldwide Study 46-47 ( 2d ed.,
Carolina Academic Press 2007)

Introduction
Quick summary of the context (including the country's recent history)
Prior to European colonization in the late eighteenth century, Australia was inhabited by
more than 750,000 Aboriginal people divided into 500 to 700 nations, each with their
own languages, traditional systems of law and culture. In 1788, the British established a
penal colony on the east coast ofAustralia. The British did not
acknowledge Aboriginal people as sovereign land owners and failed to recognize their
existing systems of culture and law. As a consequence, the British established colonies
in Australia without negotiating any formal treaties with Aboriginal people, claiming that
the land was 'terra nullius' or 'land belonging to no one.' The Commonwealth
of Australia came into existence on 1 January 1901 as a federation of six states (New
South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia)
and two territories (the Australian Capital Territory (ACT) and the Northern Territory).
The Commonwealth of Australia is governed by a Constitution with each State and
Territory developing its own constitution, parliaments, governments and law. Lawmaking powers are divided between the Commonwealth, State
and Territory governments.
Australia's system of government is based on the Westminster system, characterized by
constitutional monarchy; a separation of powers between the government, the judiciary
and the executive; responsible government; and rule of law. The largely symbolic role of
Head of State for Australia is the British Monarch, currently Queen Elizabeth II. The
Australian head of government is the Prime Minister, who is the leader of the party or
coalition that has majority support in the House of Representatives, one of two houses
in the Parliament of the Commonwealth of Australia.
Australia has a common law system with law derived from three sources: legislation
passed by parliament, common law and equity, both of which are based on previous
judicial decisions. While the laws of the Commonwealth. States and Territories share
many similarities and underlying principles, there are many distinctions between each
jurisdiction. Unless otherwise specified, this summary will focus on defendants' rights
and applicable laws in the State of Victoria.
Type of system
The common law system is characterized by the doctrine of precedent under which
courts are bound by the past decisions of higher courts. While deeply entrenched in the
common law tradition, some aspects of Australia's legal system exhibit civil law
influences, such as the use of comprehensive codified legislation.
The High Court is the court of ultimate appeal in Australia and has the power to review
the validity of Commonwealth legislation against the Constitution. The rest of the court
hierarchy is divided into two main streams: the federal court system and state court
systems. Each State has its own court hierarchy, but generally, States have local or
magistrates' courts, district or county courts, and a Supreme Court, which is the highest
court within the State or Territory.
In Victoria, the Magistrates' Court handles about 90% of all cases that come before
Victorian courts.[1] In respect to criminal laws, the Magistrates' Court hears all less
serious offences (known in all Australian jurisdictions as summary offences) and some
more serious offences (known in all Australian jurisdictions as indictable offences) at
first instance. The County Court is an intermediate trial court and has both civil and
criminal jurisdictions. The County Court has jurisdiction to hear most indictable offences
and is the court of first instance for numerous serious offences including drug offences,
sex offences, driving offences and firearms offences.
The Supreme Court is the highest court in Victoria, and includes both a Court of Appeal
and a Trial Division. The Trial Division hears the most serious criminal cases including
treason, murder, attempted murder and other major criminal matters. These matters are
heard before a judge and a 12-person jury. The jury is responsible for deciding the
verdict of the case, and the judge must preside over the proceedings and impose the
relevant penalty.
Legal aid in Australia
Each Australian jurisdiction provides legal aid in relation to matters which fall under the
laws of that jurisdiction. State and Territory legal aid is funded largely via legal aid
commissions in the relevant jurisdiction. From 2013 to 2014, more than 58,000 cases
received legal aid in Australia[2] and approximately 140,000 cases received free legal
advice. [3]
In addition to legal aid, the Commonwealth and most State and Territory governments
also fund community legal centres, which are independent, not-for-profit organizations
that provide legal services in the form of referrals, advice and assistance. Community
legal centres have limited resources and need to make strategic decisions with respect
to allocating these resources. In addition, there are a number of government funded
initiatives and bodies that provide legal services to Aboriginal Australians.
Sources of rights
National sources
Australia's Constitution is mainly administrative in nature, and does not contain a bill of
rights. It does, however, enshrine the separation of powers and the rule of law. As such,
the Constitution provides certain protections, for example, by preventing the executive
from exercising judicial power and ordering criminal detention without trial.
There are five explicit rights granted in the Australian Constitution. They are the right to
vote, protection against acquisition of property on unjust terms, the right to a trial by jury,
freedom of religion and freedom from discrimination on the basis of state residency. The
High Court has also held that, on the basis of the Constitution, prisoners have the right
to vote in the federal election.[4]
Victoria and the ACT are the only jurisdictions in Australia to have adopted human rights
legislation (respectively, the Victorian human rights legislation and ACT human
rights legislation),[5] requiring that specified human rights are taken into account in the
creation, interpretation and application of state laws. Additionally, Victorian public
authorities, including prison authorities, are obliged to respect the rights enshrined in the
Victorian human rights legislation. Also, the Victorian human rights legislation enables
individuals to seek relief or remedy (other than damages) in the event that their human
rights have been infringed upon by an unlawful act or decision of a public authority. [6]
Additionally, common law and various acts and regulations provide legal protections for
criminal defendants . Most States have general legislation on criminal procedures as
well as specific rules and regulations that apply to different courts. Most States also
have separate acts to deal with procedure in relation to child defendants.
International sources
Australia is a signatory to a number of relevant international treaties, including the
International Covenant on Civil and Political Rights (ICCPR) and the UN Convention
against Torture. However, Australian law requires that international obligations are
incorporated into domestic legislation before they are binding and enforceable.
Australian courts may consider international law concepts and treaty obligations in:
1. circumstances where there is a 'legitimate expectation' that the government
intended to act consistently with treaty obligations (namely, where a treaty has
been ratified);[7]
2. order to resolve legislative ambiguity; or
3. order to further develop Australian common law.
Pre-trial Procedures
Counter-terrorism
Apart from the police procedures outlined below, Australia has a comprehensive suite of
counter-terrorism laws. They are focused on terrorist act offences, terrorist
organizations and the prevention of the financing of terrorism. These laws provide
unique powers to officers that are not reflected in the outline below. For example, the
police can detain a person over the age of 16 years under a 'preventative detention
order' if there is a threat of an imminent terrorist attack and if the order may prevent that
attack. A person can be detained under such an order for a maximum of 48 hours under
Commonwealth law,[8] and 14 days under State and Territory laws. [9]
There are particular rights which are afforded to a person subject to a preventative
detention order, including the right to be treated humanely and not to be subjected to
cruel, inhuman or degrading treatment, the right to contact a lawyer and family
members, the right to an interpreter and the right to a copy of the preventative detention
order containing a summary of the reasons for making the order.[10]
The police can also detain a person over the age of 16 years under a 'question and
detention warrant' if there are reasonable grounds for believing that this will assist in the
collection of intelligence in relation to a terrorism offence. [11] A person can be detained
for a maximum of seven continuous days, but must be released at an earlier time if the
questioning is finished.[12] As with preventative detention orders, particular rights are
afforded to a person subject to a question and detention warrant, including the right to
be questioned in the presence of an independent retired judge and certain limited rights
to contact a lawyer or family members.[13]
Police procedures
Complaint/information
In New South Wales, any person with important information in relation to an indictable
offence must report the information to a police officer.[14] While this exact obligation does
not exist in other Australian jurisdictions, most do prohibit a person from accepting a
benefit in exchange for not reporting a crime.[15]
Arrest, Search and Seizure Laws
(a) Stops and Frisks
In Victoria, a police officer can ask a person to provide their name and address if
they have a reasonable belief that the person has committed an offence, is about to
commit an offence, or may be able to assist with the investigation of a serious
offence that has been committed.[16] The police officer must explain the nature of the
suspected offence to the person and provide certain requested information. [17]
Most Australian jurisdictions allow a police officer to frisk somebody where that
person is in a public place and if the police officer reasonably suspects that the
person has illegal drugs; things that can explode or ignite; or guns or weapons such
as knives. In some instances, a police officer can search somebody aged 14 years
or older if there is a reasonable suspicion that the person has something that could
be used to make graffiti such as spray paint. A police officer can also frisk someone
if that person is in an area where there is a lot of violent crime. [18] A police officer who
conducts a frisk search must be the same sex as the person being searched (if
possible), make a written record of the search and give the person a receipt if any
items that are taken. [19]
In December 2009, new search laws were introduced in Victoria which gave police
the power to declare that a person in a 'designated area' could be searched if the
area has a history of violence involving weapons, or if it is believed that an incident
is going to take place.[20] Police do not need to have any reasonable grounds to
suspect that a person is carrying a weapon, and can detain a person for as long as
is reasonably necessary to conduct the search.[21] These laws are controversial
when considered in light of the rights contained in the Victorian human rights
legislation, particularly with respect to the right not to have privacy arbitrarily
interfered with,[22] and the right to liberty.[23] The Victorian Government has
recognized that the laws are partially incompatible with the legislation. [24] There is
similar legislation in South Australia, Queensland and the Northern Territory that
gives police the power to make "public safety orders" prohibiting specified persons
or classes of persons from going to certain areas. [25]
In September 2014, new search laws were introduced in Queensland which provide
that police can stop, detain and search a person without a warrant where they
reasonably suspect that person is a participant in a criminal organisation. [26] These
laws, along with earlier, less restrictive laws in South Australia and New South
Wales, were introduced with the aim of restricting the activities of motorcycle gangs
and other criminal organisations.[27]
(b) Searches
Police can search a person's bag or car without a warrant in generally the same
circumstances that a frisk search can be carried out.[28] Police can search a
house without a warrant, and may exercise reasonable force to enter the house
if necessary, if they believe that there is somebody in the house that has
committed a serious crime, or who has escaped from custody.[29]
(c) Arrests
A police officer can arrest a person and take them to a police station to be
questioned if they hold a reasonable belief that the person has committed a
crime,[30] where there is a warrant for the arrest[31] or when it is known to
police that a person is a risk to a family member.[32] An ordinary citizen can
also arrest any person committing an offence in order to preserve public
order or for the safety and welfare of the public. [33] The Victorian human rights
legislation requires that a person be informed of the reason that they are
under arrest.[34]
Only reasonable (proportionate) force can be used by the police officer in

conducting the arrest.[35] It is an offence for a person to resist arrest,
punishable by up to five years imprisonment.[36] It is therefore best to cooperate with the police as much as possible.
Aside from the obligation to tell the police your name and address, [37] a
person has the right to remain silent.[38] Police must inform the person of this
right.[39]
The police must notify the Victorian Aboriginal Legal Service and any local
Aboriginal Justice Panel if they have arrested an Aboriginal or Torres Strait
Islander person. A person who is not an Australian citizen should tell police of
this immediately, as non-citizens must be afforded the right to contact their
consulate.[40]
(d) Pre-trial detention
After an arrest has been made, there is no specific limit to the time that a
person can be detained and/or questioned. The law provides that a
person must be released unconditionally, released on bail or brought
before a judge within a 'reasonable time' of being taken into custody.[41]
The position differs for people who are suspected to have committed an
offence under Commonwealth law. Offences under Commonwealth law
include social security fraud, serious drug offences, people smuggling
and terrorism. For non-terrorism related offences, police generally have a
maximum of four hours to undertake their investigations. If the person
appears to be under the age of 18, or is an Aboriginal or a Torres Strait
Islander, the maximum time that the person can be held in custody is two
hours.[42]
(e) Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to
protect against illegal police procedures)
Each jurisdiction has various avenues through which a person can
make a complaint about police conduct including State or Territorybased bodies, such as Victoria Police Professional Standards
Command;[43] or Victorian Independent broad-based anti-corruption
commission.[44] Commonwealth based complaints may be made to the
Commonwealth Ombudsman. [45] A person who has suffered a wrong
due to illegal police conduct may seek compensation through the
commencement of civil action against the police.
Lineups and other identification procedures

(a) Lineups
There is no obligation to participate in a line-up. [46]
(b) Other identification procedures
There are different rules that apply to police procedures in
obtaining fingerprints depending on the age of the person in
custody.
If a person is at least 15 years of age, a police officer can use
reasonable force to obtain the person's fingerprints, and if the
officer believes on reasonable grounds that the person has
committed a serious offence. The fingerprints must be
destroyed after six months if the person has not been charged
with an offence in that time, or if a court has found the person
not guilty of the offence.[47]
If the person is under 10 years of age, fingerprints cannot be
taken at all, and if under 17 years of age, the police must taperecord or video-record the fingerprinting. Also, if the person
suffers from a cognitive disability or a mental illness, there
must be an independent third person present when the
fingerprints are taken.
Fingerprints cannot be obtained for less serious offences, such
as littering. The police must apply for a court order to allow
them to take a photo or a body sample against a person's will.
Interrogation
(a) Before formal charge in court
As noted above, aside from certain identifying information,
a person has the right to say nothing to police. In New
South Wales, this right to silence is qualified in relation to
indictable offences. The court may draw an unfavourable
inference if an accused fails to mention something to the
police when questioned and later seeks to rely on this
omission in court.[48] In Queensland, witnesses before the
Crime and Misconduct Commission are liable to
imprisonment for up to five years if they claim the right to
silence and refuse to give evidence.[49] This penalty was
introduced to ensure effective investigation into the
criminal activities of motorcycle gangs and members of

criminal organisations.
The police can ask a person in custody questions in
relation to the offence for which they have been arrested.
However, before the interview commences, the police
officer must inform the person of their rights, including that
the person does not have to say anything, and that the
person is entitled to make two phone calls one to a friend
or relative, and another to a lawyer.[50] This is known as the
police caution. There are two exceptions to the rule that a
person in custody must be offered the right to speak to a
friend, relative or lawyer: firstly, where the communication
would result in the escape of an accomplice or the
destruction of evidence; and secondly, where the safety of
others causes the questioning to be so urgent that it should
not be delayed.[51]
There are particular rights afforded to the person in
custody in respect of the interview process. For example,
access to an interpreter[52], the presence of a parent or
guardian adult for persons under 18 years,[53] and the
presence of an independent third person if the person
being interrogated suffers from a cognitive disability or a
mental illness.
If the police are questioning a person about a serious
offence, the caution and the interview are required to be
tape-recorded or video-recorded. The resulting recording
and transcript must be provided to the person within 7
days.[54] A person can refuse to be video-recorded.
Questioning in relation to less serious offences such as
minor driving offences, begging or being drunk in a public
place do not need to be recorded.[55] The police officer can
write down the questions asked, and any answers that
have been provided. This information can then be used as
evidence in court.
As noted above, a person can be held in custody and
questioned for a period of time that is reasonable in all the
circumstances,[56] although in New South Wales the
maximum "reasonable" time is four hours within a 48 hour
period.[57] If the police want to interview a person for a
second time (for example, after they have been charged
with an offence), they may do so provided the maximum

time permitted for questioning did not expire in the first
interview.[58] In some jurisdictions, the police must apply to
an authorised officer if they want to extend the period of
time for questioning.[59] For example, in New South Wales,
a police officer may apply to the court for a detention
warrant to extend the time for questioning beyond four
hours and must satisfy certain criteria, including that the
investigation is being conducted diligently and without
delay and that circumstances exist that make it
impracticable for the investigation to be completed within
the permitted four hour timeframe.[60]
If the police want to interview a person held in custody who
has been charged in relation to another matter, they must
apply in writing to the court to do so.[61] The person must be
brought before the court for the hearing of the application,
and be given the opportunity to obtain legal representation.
An audiovisual recording must be made of the giving of the
police caution and the subsequent questioning.
(b) Enforcing the Rules (procedures to protect against illegal interrogation)
The Victorian Evidence Act 2008 provides the court
with a discretion to exclude evidence of an admission if
the admission was influenced by improper police
conduct or if there were circumstances that may have
adversely affected the truth of the admission.
Commonwealth, ACT, NSW, Northern Territory and
Tasmanian legislation contain similar provisions.
[62]
Further, a number of jurisdictions provide that
evidence that was obtained 'improperly' or in
contravention of an Australian law is not to be admitted
unless the desirability of admitting the evidence
outweighs the undesirability of admitting the evidence.
The court may have regard to whether the impropriety
or contravention was contrary to or inconsistent with a
right recognized by the ICCPR. Finally, if, contrary to
the law, there is no recording of an interview with a
suspect in relation to a serious offence, any confession
or admission made by the suspect can only be
admitted in evidence if the court believes that there are
exceptional circumstances that justify it being admitted.
[63]
Right to Counsel
A police officer must inform a person under arrest that
they have the right to make a telephone call to a
lawyer.[64] Appropriate facilities must be provided to the
person under arrest to enable them to make any
telephone calls as soon as possible, and as far as
possible, the communication should occur in a way
such that it will not be overheard. [65]
Rights of the Accused at All Times
Criminal Law system
Double jeopardy
Double jeopardy is generally understood as the
principle that a person should not be tried or punished
twice with respect to the same, or a substantially
similar offence. This principle has long been a feature
of the common law in Australia[66] and is contained in
legislation in various States and Territories.[67] Further,
the Victorian and ACT human rights legislation includes
the right not to be tried or punished more than once for
an offence in respect of which he or she has already
been finally convicted or acquitted in accordance with
law.[68]
However, the double jeopardy rule has now been
modified in a number of jurisdictions in Australia by
allowing for an accused who has been acquitted to be
retried for the same offence in two instances; firstly,
where the offence is very serious and fresh and
compelling evidence is discovered; and secondly,
where the acquittal was tainted, eg, where the accused
bribed an official in the case.[69]
Legality principle
The Australian common law notion of the principle of
legality provides that, unless clear words are used, the
courts will not interpret legislation as abrogating or
inhibiting fundamental rights or freedoms.[70]
Presumption of innocence
The presumption of innocence is a basic principle of
Australian law that operates to impose on the
prosecution the burden of proving the charge, and
ensures that the accused cannot be presumed to be
guilty until the charge has been proved beyond a
reasonable doubt. The accused is therefore said to be
'innocent until proven guilty'.
Standards of proof and standards for conviction
The prosecution bears the legal burden of proving
every element of the offence. The legal burden of proof
on the prosecution must be discharged beyond
reasonable doubt.[71]
Procedure with witnesses
An accused has the choice of whether to call a witness
on his or her behalf. Generally, a party has the right to
question any witness, though leading questions are not
allowed. With the exception of expert witnesses,
generally a witness can testify only as to what the
witness did, what the witness heard or what the witness
saw. The court has very broad powers to control the
procedure regarding witnesses.[72]
Capital Punishment
The death penalty has been formally abolished in all
Australian jurisdictions.[73]
Ex Post Facto punishment
In the absence of some clear statement to contrary, the
courts generally assume that legislation is not intended
to operate retrospectively.[74] The courts apply this
presumption most strictly in relation to legislation
creating a criminal offence because of the manifest
injustice that the alternative approach would bring
about.[75]
Fair Trial Rights

Freedom from prolonged pre-trial detention
Victorian criminal law requires that trial of a person for
an offence must commence within 12 months after the
day on which the person is committed for trial or if no
committal proceedings have been held then 12 months
after the day on which the indictment against the
person is filed.[76] For sexual offences the equivalent
time limit for commencing trial is 3 months.[77] The
Victorian and ACT human rights legislation also afford a
person charged with a criminal offence the minimum
guarantee to be tried without reasonable delay.
[78]
Australia's counter-terrorism regime and immigration
detention practices have been criticized on the basis
that the period of detention provided for is often
arbitrary, and therefore, in breach of the detainee's
human rights.[79] Additionally, in certain cases, migration
law may allow indefinite detention of persons seeking
asylum in Australia.[80]
Freedom from punishment
Torture is criminalized in Australia, and acts of cruel,
inhuman or degrading treatment are covered by a
range of offences in existing Commonwealth, State and
Territory legislation.[81]
Right to counsel
There is legislation in all Australian jurisdictions which
extends the bare right to legal representation on an
accused person facing trial for criminal offences.[82] In
Victoria, a judge has the power to direct Victoria Legal
Aid to provide representation to an accused in
circumstances where the accused cannot afford a
privately funded lawyer and where there cannot be a
fair trial without legal representation.[83]
Right to habeas corpus
The right to a writ of habeas corpus is recognized in
Australia as a 'basic protection of liberty.' [84]
Right to a fair trial

The right to a fair trial is one of the most fundamental
attributes of the Australian common law system.
Further, it is recognized as a human right in the
Victorian and ACT human rights legislation. [85] There is
no precise definition of a 'fair trial', which means that
the court must consider relevant circumstances of each
particular case.[86] Finally, there is specific legislation in
each Australian jurisdiction which enshrines particular
aspects of the right to a fair trial. For example, an
accused is generally entitled to be informed of the
charge against him or her, to an interpreter, to the
provision of legal aid and to the right of silence. [87] An
accused is also entitled to receive free of charge a
copy of the charge-sheet from the informant or registrar
and reasonable particulars of the charge.[88]
Right against selfincrimination
The common law recognises that a person cannot be
compelled to provide evidence which incriminates them
in a crime.[89] The scope of the right, however, is
unclear. This is partly due to the fact that adverse
inferences can sometimes be drawn from a defendant's
failure to give evidence that could be assumed to be
within the defendant's knowledge. [90] The Victorian and
ACT human rights legislation also reflect this
guarantee.[91]
Right to a speedy trial
The efficient and speedy conduct of criminal
proceedings in Australia is largely a matter of case
management in courts. The courts regularly update
practice directions to increase efficiency of trials and
other proceedings.
An accused may seek permanent stay on proceedings
on the basis of unfairness resulting from undue delay.
[92]
The court's power to grant a stay on the proceedings
is a discretionary power and in the past has required
applicants to meet relatively high thresholds.
Accordingly, exceptional circumstances may be
required in order to obtain a permanent stay on the
basis of undue delay during trial. The right to be tried

without unreasonable delay is recognised as a human
right under the Victorian and ACT human rights
legislation.[93]
Right to a trial by jury / right to impartial judge
Section 80 of the Australian Constitution guarantees
trial by jury of serious criminal offences. All of the
States and Territories of Australia retain trial by jury for
indictable offences. Summary offences are heard by
the lower courts (for example, the Magistrates' Court in
Victoria or the Local Court in New South Wales).
[94]
There is no provision for an accused to request a
jury trial in relation to summary offences. Certain
indictable offences (known as indictable offences
triable summarily) can also be heard before a lower
court with the consent of the accused.[95]
The Constitution also embodies a doctrine known as
the 'separation of powers'. This doctrine has the effect
of keeping judicial power separate from executive and
legislative power. The result is that proceedings are
resolved by courts and judges who are impartial and
not subject to improper controls or pressures. [96]
Right to appeal
A convicted person in Australia has the legislative right
to appeal against conviction or sentence, or both.
[97]
The Victorian and ACT human rights legislation also
provide for this.[98]
Ways to protect rights
Exclusionary Rule or Nullity of Procedure
Generally speaking, evidence that is relevant will be
admissible in a criminal proceeding. There are,
however, a number of exclusionary rules that may
prevent evidence from being admissible. Examples of
exclusionary rules include the 'hearsay' rule and the
'propensity evidence' rule. Generally, hearsay evidence
refers to a statement by a witness that a particular fact
occurred, even though the witness did not actually
observe the occurrence of that fact. The 'propensity
evidence' rule is a common law rule that excludes

evidence that tends to show that an accused has a
disposition to act in a particular way.[99]
Civil Action
An accused may bring an action for negligence against
the State in order to protect his or her rights. Each
Australian State owes a common law duty to take
reasonable care in relation to the safety of prisoners
and individuals who are under arrest and in its custody.
[100]
An action for battery may also be brought if, for
example, a police officer physically restrains a person
for the purpose of effecting an arrest where that arrest
was unlawful.[101]
Other legal options include making a complaint to an
independent body such as the Victorian Ombudsman.
An application to a Victims of Crime Compensation
Tribunal may also be appropriate; however, any
compensation obtained pursuant to an order by this
Tribunal would not make the relevant police officers
directly accountable for their actions. The Victorian
human rights charter does not create a new right to
begin legal action for a breach of human rights. Rather,
it allows a person to raise human rights arguments
along with other existing remedies or legal
proceedings.[102]
Complaints procedures under the international human
rights treaties
It is possible for an individual to make a complaint to
the United Nations that their rights under a treaty have
been violated by Australia, provided that Australia is a
party to the treaty and has agreed to be subject to the
relevant complaints mechanism.[103]
Rights in Prison
Conditions of confinement
The conditions of confinement in prison are regulated
by the corrections legislation in each state. In Victoria,
the corrections legislation and regulations contains
specific regulations with regard to a number of prison

management issues, including medical tests, searches,
the use of firearms and access to visitors. Additionally,
s 47 of the Victorian Corrections Act lists 14 prisoner
rights, including with respect to provision of food and
health care, clothing, practice of religion, complaints
and participation in education programs. The Victorian
human rights legislation also enshrines a number of
rights relevant to Victorian prisoners, namely
protections when deprived of liberty and otherwise
involved in the legal system, including the right to be
informed of the reason for arrest or detention, a right to
apply to a court for a declaration or order regarding the
lawfulness of detention, the right to humane treatment,
the right to a fair hearing and the right of a person
charged with a criminal offence to be presumed
innocent until proved guilty.[104]
Most prisons in Australia are monitored by
governmental or quasi-governmental bodies, and are
therefore not exposed to regular independent
oversight. Western Australia is the only State to have
an independent prison watchdog, namely the Office of
the Inspector of Custodial Services.
Immigrant detention
The Racial Discrimination Act 1975 (Cth) prevents
discrimination based on race, color, descent or national
or ethnic origin. Outside of the criminal law context,
Australia's current migration policy requires asylum
seekers who arrive by boat to Australia, including
genuine refugees, to be detained in offshore detention
centres while their applications are processed. The
protections provided in the corrections legislation and
other Australian laws do not apply to their detention.
As mentioned above, this may result in indefinite
detention in certain limited circumstances.[105] Asylum
seekers who have met the refugee criteria but whom
the Australia Security Intelligence Organisation has
classified as a security risk may be indefinitely detained
if they cannot be resettled in another country. Given
that ASIO does not usually provide reasons for the
security risk classification, the classification decisions

are generally not reviewable.
The Human Rights Committee has in some cases
made rulings against Australia in relation to this issue
but there are no legal mechanisms for the rulings to be
enforced in Australia.
Right to medical care in custody
The Corrections Act provides the right for prisoners
(including those taken into custody for questioning) to
have access to reasonable medical care and treatment
necessary for the preservation of health including, with
approval and at the prisoner's own expense, a private
registered medical practitioner, dentist, physiotherapist
or chiropractor chosen by the prisoner.[106]
Mental health care
The Corrections Act provides mentally ill prisoners with
the right to have reasonable access within the prison
or, with approval, outside prison to special care and
treatment for that illness. These costs are not covered
by the government.
Restriction of rights
In Queensland, particularly harsh imprisonment
conditions apply to convicted members of 'Criminal
Motorcycle Gangs', including long periods of solitary
confinement and restrictions on visitors and phone
calls. This policy has been criticized by the Supreme
Court of Queensland for being inconsistent with
internationally recognized human rights. [107]
Since the terrorist attacks on 11 September 2001, the
Australian Government has also introduced more than
40 new counter-terrorism laws. Persons charged under
counter-terrorism laws are denied many procedural
protections available to other types of criminal
defendants.
Women's rights in prison

In recent years, areas of focus for women's rights in
Australian prisons include provision of health services
to pregnant women, practices of strip searching, culture
of violence in prisons and employment of male prison
officers.[108] Corrective services legislation and antidiscrimination laws may provide an avenue for women
in prisons to protect their rights in relation to these
issues. The Standard Guidelines for Corrections in
Australia also provide some minimum standards which
protect women's rights in prisons to the extent that they
are implemented in each jurisdiction. These Guidelines
represent a statement of national intent around which
each Australian jurisdiction continues to develop its
own range or relevant policies and legislation.
Court Procedures
Pre-trial
Charging Instrument
In Victoria, criminal proceedings may be commenced
by:
(a) filing a charge-sheet (the most common method);
(b) direct indictment, filed by the Director of Public Prosecutions or the Crown
Prosecutor; or
(c) through a court direction to be tried for perjury.
The filing of a charge-sheet is synonymous
with laying an 'information' or filing a 'charge'
in other jurisdictions. The purpose of a
charge-sheet is to provide the court with
information of the offence it will be required
to consider, and to provide the accused with
the information regarding the substance of
the charge.[109]
Pre-Trial Motions
Steps prior to initial appearance Once a
proceeding has been formally commenced
by charge-sheet, it will be set down for a

mention hearing (generally for less serious
offences) or a filing hearing (for more
serious offences). At these hearings, the
Court will determine whether the case
should be committed for trial. If the
proceeding is commenced by direct
indictment, pre-trial procedures will
commence (such as directions hearings).
The court will generally have jurisdiction to
hear the case if the offence was committed
within the State or Territory court's
jurisdiction or the offence is a federal
offence.
The accused will receive a 'Notice to Appear'
when the case is set down for a mention
hearing, and a 'Summons' or 'Warrant to
Arrest' for a filing hearing. This will indicate
when and where the initial hearing will be
heard. A Notice to Appear will require the
accused to either attend or be represented
by a person appearing on their behalf in
court, whereas a Summons requires the
physical attendance of the accused.
A failure to appear (through a
representative, or in person) in response to
a Notice to Appear may result in a warrant to
arrest being issued, or the charge being
heard in the absence of the accused.
The accused must be provided with a brief
containing evidence available against the
accused and other information relevant to
the proceeding.
Pleas Prior to the initial court hearing (a
mention hearing in the case of less serious
offences or the committal hearing in the
case of serious offences), an accused may
choose whether to plead guilty (in which
case sentencing will be the only issue
considered by the court), or to plead not
guilty (in which case, a full hand-up brief will

be served and the proceedings will
continue). In some circumstances, a guilty
plea may not be accepted, which means that
the earliest opportunity to plead guilty will be
at the committal hearing.
Abuse of process / Stays It is important to
note that, if an application for an abuse of
process is to be made, it should normally be
made as soon as possible prior to the
prosecution commencing their case.
Likewise, if an application for the trial to be
stayed is to be made, this should be done
swiftly. In general, a permanent stay may be
granted if there is a fundamental defect
which goes to the root of the trial and cannot
be remediated by the trial judge.
Preliminary Hearing
The initial court appearance is where the
court determines whether there is sufficient
evidence for a case to proceed to trial. If the
accused enters a plea of not guilty, the court
may hear some evidence to determine
whether there is sufficient evidence to
support a conviction. If the court decides
that there is sufficient evidence, the court
will set down the case for trial. If no plea is
entered, this will be treated as a plea of not
guilty.
The court will also consider whether bail
should be granted, or whether the accused
should be remanded in custody.
Pre-trial evidence
Once an accused has been committed for
trial, the prosecutor must provide a copy of
the transcript of evidence and statements
admitted in evidence at the committal, along
with a transcript of any recording admitted in
evidence and the accused must be given an

opportunity to examine any exhibits.[110]
The informant or prosecutor has a
continuous duty of disclosure in relation to
any information in their possession if that
information would otherwise have needed to
be disclosed in a brief.[111] Where new
information relevant to the proceeding
comes into the informant's possession or to
the informant's notice, the informant must
provide the information to the relevant
parties as soon as practicable.[112]
In Victoria, the police or a prosecutor may
apply for a compulsory examination hearing,
which will allow examination of a person or
require a person to provide a document,
prior to trial commencing. Although the
accused may apply to cross-examine this
person at the committal hearing, the
accused does not have the right to do so.
Trial
Nature of the Trial
In Australia, trials usually take place in open
court. Upon application, there are narrow
circumstances in which a court may order a
closed hearing, where it is necessary for the
administration of justice.[113]Generally,
defendants have the right to trial by jury.[114]
The adversarial nature of Australian court
system means that parties are not required
to disclose their cases prior to the trial.
Despite this, many jurisdictions encourage
discussion between parties prior to trial to
resolve cases or narrow the issues in
dispute.[115]
Defendant
The defendant may elect whether or not to
give evidence during the trial. Generally, if
the defendant is prepared to give their own

evidence, this will occur prior to other
witnesses.
Expert Witnesses
Expert evidence may be called upon to
provide an opinion or explain certain facts
that may arise from physical evidence, or to
which an eye witness cannot attest (for
example, DNA evidence). Experts must
have specialized knowledge based on their
training, study or experience and can only
provide opinion evidence to the extent the
evidence they adduce is based wholly or
substantially on that knowledge.[116]
Judges
Generally, one sitting judge will hear a case
during a trial at first instance. On appeal,
one or three judges may hear the appeal. If
the case is appealed again, to the High
Court, up to seven judges may hear the
case.
Victims
If an accused is found guilty, victims may
have the opportunity to prepare and read a
Victim Impact Statement in court. The
Statement can contain information on how
the victim was affected socially, emotionally,
financially or physically by the crime
committed by the defendant. Victim Impact
Statements can help a judge or jury
understand how the crime impacted the
victim, and may be taken into account when
determining a sentence.
Sentencing
There are a variety of sentencing options for
Australian courts, including imprisonment;
treatment / detention in a mental health
service; drug treatment order; youth

detention orders; and community correction
orders.[117]
In Victoria, upon application by the accused,
the court may provide an indication of
whether a sentence of imprisonment is likely
at any time after the indictment is filed.[118]
When determining an appropriate sentence,
Victorian legislation requires the court to
consider a number of circumstances
including the gravity of the offence; the
offender's culpability and previous character;
and any other aggravating or mitigating
factor.[119]
Appeals
Right to Appeal
A defendant may appeal the outcome of a
criminal proceeding on a question of law, or
against the conviction and the sentence, or
the sentence alone. The prosecution may
also appeal against the sentence imposed,
or on the basis that the defendant failed to
fulfil an undertaking to assist authorities.
Leave to appeal may be required and is not
automatically granted.[120]
The incompetence of a defendant's lawyer
alone is not a sufficient basis to allow an
appeal. The court hearing the application for
appeal must focus on the consequences of
the claimed incompetence and whether it led
to a substantial miscarriage of justice. [121]
Other Grounds for Appeal
In some jurisdictions, there are limited
opportunities for interlocutory appeals in
relation to a decision made by a judge
during or before trial. Interlocutory appeals
may relate to a decision to rule key evidence
inadmissible, or other important procedural
decisions, such as the decision to discharge,

or to refuse to discharge a jury.
References
1. See 'Magistrate's Court of Victoria',
available at
<http://www.courts.vic.gov.au/courtstribunals/victorian-courts-andtribunals/magistrates-court-victoria>.
2. National Legal Aid, 'National Legal
Aid Statistics' (February 2014),
available at
<http://lacextra.legalaid.nsw.gov.au/N
LAReports/reportviewer.aspx?
reportname=ApplicationStatus>.
3. National Legal Aid, 'National Legal
Aid Statistics' (February 2014),
available
at http://lacextra.legalaid.nsw.gov.au/
NLAReports/reportviewer.aspx?
reportname=LegalAdvice .
4. Roach v Australian Electoral
Commission and Commonwealth of
Australia (2007) 233 CLR 162.
5. Charter of Human Rights and
Responsibilities Act 2006 (Vic),
Human Rights Act 2004 (ACT).
Responsibilities Act 2006 (Vic), s 39.
7. Minister of State for Immigration
and Ethnic Affairs v Teoh (1995) 183
CLR 273.
8. Criminal Code Act 1995 (Cth), s

105.14(6).
9. For example, see Terrorism (Police
Powers) Act 2002 (NSW), s 26K(2)
and Terrorism (Preventative
Detention) Act 2005 (Qld), s12(2).
10. For example, see Criminal Code
Act 1995 (Cth), ss 105.5A, 105.31,
105.33, 105.35, 105.37. For further
information, see Attorney General's
Department website, 'Australia's
counter-terrorism
laws':http://www.ag.gov.au/NationalS
ecurity/Counterterrorismlaw/Pages/A
ustraliascounterterrorismlaws.aspx.
11. Australian Security Intelligence
Organisation Act 1979 (Cth), ss 34F.
For further information see Attorney
General's Department website,
'Australian Security Intelligence
Organisation Act
1979':http://www.ag.gov.au/NationalS
ecurity/Counterterrorismlaw/Pages/A
ustralianSecurityIntelligenceOrganisa
tionAct1979.aspx.
Organisation Act 1979 (Cth) ss
34G(4), 34S and 34ZE.
Organisation Act 1979 (Cth), ss 34G
and 34H.
14. Crimes Act 1900 (NSW), s 316(1).
15. See the Crimes Act 1914 (Cth), s
44; Crimes Act 1958 (Vic), s 326(1);
Criminal Code Act 1899 (Qld), ss
133; Criminal Code (WA), s 136;
Criminal Code 1924 (Tas), s 102(1);
Criminal Code Act (NT), s 104(1).
16. Crimes Act 1958 (Vic), s 456AA(1).

17. Crimes Act 1958 (Vic), ss 456AA(2)
and 456AA(4).
18. Victoria Legal Aid and Flemington
and Kensington Community Legal
Centre joint publication, 'Police
powers: your rights in Victoria', July
2013: https://www.legalaid.vic.gov.au
/find-legal-answers/free-publicationsand-resources/police-powers-yourrights-in-victoria.
19. Ibid
20. Control of Weapons Act 1990 (Vic),
s 10G(1).
21. Control of Weapons Act 1990 (Vic)
s 10G(4).
Responsibilities Act 2006 (Vic) s 13.
24. Hansard, 12 November 2009.
Assembly Second Reading Speech.
Summary offences and Control of
Weapons Bill 40184024: http://www.parliament.vic.gov.a
u/downloadhansard/pdf/Assembly/Jul
-Dec%202009/Assembly%20Extract
%2012%20November%20from
%20Book%2014.pdf.
25. Serious and Organised Crime
(Control) Act 2008 (SA) Part 4,
Criminal Organisation Act 2009 (Qld)
Part 4 and Serious Crime Control Act
2009 (NT) Part 5.
26. Police Powers and Responsibilities

Act 2000 (Qld) s 29(1A).
27. See, for example, Serious and
Organised Crime (Control) Act 2008
(SA) and Crimes (Criminal
Organisations Control) Act 2012
(NSW).
Centre joint publication, above n 14.
29. Crimes Act 1958 (Vic) s 459A(1)
and (2).
30. Crimes Act 1958 (Vic) ss 458 and
459.
31. Crimes Act 1958 (Vic) ss 464X and
457.
33. Crimes Act 1958 (Vic) s 458.
Responsibilities Act 2006 (Vic) s
21(4).
35. Crimes Act 1958 (Vic) s 462A.
36. Crimes Act 1958 (Vic) s 31(1)(b).
37. Crimes Act 1958 (Vic) s 456AA.
38. Crimes Act 1958 (Vic) s 464J.
39. Crimes Act 1958 (Vic) s 464A(3).
40. Crimes Act 1958 (Vic) s 464F.
41. Crimes Act 1958 (Vic) s 464A(1).
42. Crimes Act 1914 (Cth) s 23C(4).

43. www.police.vic.gov.au follow the
Compliments and complaints link.
44. www.ibac.vic.gov.au follow the
Report corruption or misconduct
link.
45. www.ombudsman.gov.au follow
Making a complaints link.
47. Crimes Act 1958 (Vic) s 464K.
48. Evidence Act 1995 (NSW) s 89A.
49. Crime and Misconduct Act 2001
(Qld) s 190.
50. Crimes Act 1958 (Vic) s 464A and
464C; Police Powers and
Responsibilities Act 2000 (Qld) s
418.
51. Crimes Act 1958 (Vic) s 464C(1).
52. Crimes Act 1958 (Vic) s 464D;
Police Powers and Responsibilities
Act 2000 (Qld).
53. Crimes Act 1958 (Vic) s 464E.
54. Crimes Act 1958 (Vic) s 464H(3);
Police Powers and Responsibilities
Act 2000 (Qld) ss 436-438.
55. Crimes Act 1958 (Vic) s 464G and
464H.
56. For example, see Crimes Act 1958
(Vic) s 464A; Police Powers and
Responsibilities Act 2000 (Qld) ss

403 and 404.
57. Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW) ss
114-117. In Queensland, the
maximum "reasonable" time is eight
hours, although a person in custody
may not be questioned for more than
four hours: Police Powers and
Responsibilities Act 2000 (Qld) s 403
58. For example, see Law Enforcement
(Powers and Responsibilities) Act
2002 (NSW) ss 114-117.
59. For example, see Law Enforcement
(Powers and Responsibilities) Act
2002 (NSW) s 118 and Police
Powers and Responsibilities Act
2000 (Qld) ss 405 and 406.
60. Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW) s
118(5).
61. Crimes Act 1958 (Vic) s 464B. The
same process does not apply to a
prisoner who consents to being
questioned, however such a prisoner
must not be removed from the prison
or police gaol in which he or she is
being held for the purposes of the
questioning: see Crimes Act 1958
(Vic) s 464B(11) and 464B(12).
62. Evidence Act 1995 (Cth) ss 84-85;
Evidence Act 2011 (ACT) ss 84-85;
Evidence Act 1995 (NSW) ss 84-85;
Evidence (National Uniform
Legislation) Act 2011 (NT) ss 84-85;
Evidence Act 2001 (Tas) ss 84-85.
63. Crimes Act 1958 (Vic) s 464H(2).
64. Crimes Act 1958 (Vic) s 464C(1).

65. Crimes Act 1958 (Vic) s 464C(2).
66. Attorney General's Department
website, 'Minimum guarantees in
criminal
proceedings':http://www.ag.gov.au/Ri
ghtsAndProtections/HumanRights/Pu
blicSectorGuidanceSheets/Pages/Mi
nimumguaranteesincriminalproceedi
ngs.aspx.
67. See, for example, Criminal Code
(WA) s17; Criminal Code (Qld) s17;
Acts Interpretation Act 1915 (SA) s
50.
68. Human Rights Act 2004 (ACT) s
24; Charter of Human Rights and
69. Bagaric, Mirko, Ross on Crime
(Thomson Reuters, 6th edition,
2013), 588. See, for example,
Criminal Procedure Act 2009 (Vic) Pt
7A, Crimes (Appeal and Review)
Amendment (Double Jeopardy) Act
2006 (NSW) and Criminal Code (Qld)
Ch 68.
70. LexisNexis, Williams' Civil
Procedure Vic (at Service 276 January 2014) [8020.0]; see, also,
Momcilovic v R (2011) [2011] HCA 34
at [444] per Heydon J.
71. See, for example, Criminal Code
Act 1995 (Cth) s 13.1 and 13.2 and
Evidence Act 2008 (Vic) s 141;
Evidence Act 1995 (NSW) s 141.
72. Evidence Act 2008 (Vic) s 26.
73. Death Penalty Abolition Act 1973

(Cth).
74. Maxwell v Murphy (1957) 96 CLR
261 at 267 per Dixon CJ; Fisher v
Hebburn Ltd (1960) 105 CLR 188 at
194 per Fullagar J.
75. R v Miah [1974] 1 WLR 683 at 694
per Lord Reid. In relation to
retrospectivity, also see Sentencing
Act 1991 (Vic) s 114 which provides
that if an Act increases the penalty or
the maximum or minimum penalty for
an offence, the increase applies only
to offences committed after the
commencement of the provision
effecting the increase.
76. Criminal Procedure Act 2009 (Vic)
s 211.
s 212.
22(2)(c); Charter of Human Rights
and Responsibilities Act 2006 (Vic) s
25(2)(c).
79. Law Council of Australia, website,
'Immigration Detention and Asylum
Seekers'
<http://www.lawcouncil.asn.au/lawco
uncil/index.php/currentissues/immigration-detention-andasylum-seekers>; Amnesty
International, 'Review of antiterrorism laws welcome, but some
proposals are not acceptable' 13
August 2009
<http://www.amnesty.org.au/news/co
mments/21541/>.
80. Al-Kateb v Godwin (2004) 219 CLR

562.
81. Attorney General's website,
'Prohibition on torture and cruel,
inhuman or degrading treatment or
punishment':http://www.ag.gov.au/Ri
ghtsAndProtections/HumanRights/Pu
blicSectorGuidanceSheets/Pages/Pr
ohibitionontortureandcruelinhumanor
degradingtreatmentorpunishment.as
px.
82. Thomson Reuters, The Laws of
Australia (at 1 July 2011) [11.9.150].
See Judiciary Act 1903 (Cth) s 78;
Crimes Act 1900 (ACT) s 285;
Criminal Procedure Act 1986 (NSW)
s 36; Criminal Code (NT) s 360;
Criminal Code (Qld) s 616; Criminal
Law Consolidation Act 1935 (SA) s
288; Criminal Code (Tas) s 368;
Criminal Procedure Act 2009 (Vic) s
32; Criminal Procedure Act 2004
(WA) s 172.
s 197(3).
84. Al-Kateb v Godwin (2004) 219 CLR
562 at [25] (Gleeson CJ).
21; Charter of Human Rights and
86. LexisNexis, Halsbury's Laws of
Australia (at Number 382 - January
2014) [80-1575].
Australia (at 1 February 2012)
[9.1.330].
88. For example, see Criminal

Procedure Act 2009 (Vic) s 32, Police
Powers and Responsibilities Act
2000 (Qld), ss 382 and 387;
Queensland Government website,
'Being Charged with an
Offence:'http://www.qld.gov.au/law/se
ntencing-prisons-andprobation/being-charged-with-anoffence/.
Australia (at 1 April 2008) [21.6.860].
90. Ibid
22(2)(i); Charter of Human Rights
25(2)(k).
92. Jago v District Court of New South
Wales and Others (1989) 87 (ALR)
577. Also see Thomson Reuters, The
Laws of Australia (at 1 May 2011)
[11.6.510], [11.6.720].
22(2)(c); Charter of Human Rights
25(2)(c).
94. For example, see Criminal
Procedure Act 2009 (Vic) s 27,
Criminal Procedure Act 1986 (NSW)
s 7(1), and Justices Act 1886 (Qld) s
139.
ss 28 and 29(2).
96. Attorney General's Department
website, 'Fair trial and fair hearing
rights:'http://www.ag.gov.au/RightsAn
dProtections/HumanRights/PublicSe
ctorGuidanceSheets/Pages/Fairtriala
ndfairhearingrights.aspx.
97. Bagaric, Mirko, Ross on Crime
(Thomson Reuters, 6th edition,
2013), p 111.
22(4); Charter of Human Rights and
Responsibilities Act 2006 (Vic) s
25(4).
99. Robert Wilson, 'Evidence: overview
of the principles of relevance and
admissibility' http://www.findlaw.com.
au/articles/113/evidence-overview-ofthe-principles-of-relevance-a.aspx.
100. See eg Howard v Jarvis (1958)
98 CLR 177; New South Wales v
Bujdoso [2005] HCA 76.
101. Collins v Wilcock [1984] 1 WLR
1172 at 1178.
102. http://www.humanrightscommis
sion.vic.gov.au/index.php/thecharter#how-are-breaches-ofhuman-rights-addressed.
103. http://www.ohchr.org/EN/HRBo
dies/TBPetitions/Pages/IndividualCo
mmunications.aspx#proceduregener
ale;http://www.ag.gov.au/RightsAndP
rotections/HumanRights/PublicSector
GuidanceSheets/Pages/Complaints
mechanismsunderhumanrightstreatie
s.aspx.
Responsibilities 2006 (Vic), Part 2.
105. Al-Kateb v Godwin (2004) 219
CLR 562.
106. Corrections Act 2009 (Vic), s

47(h).
107. Callanan v Attendee X [2013]
QSC 340.
108. See Anti-Discrimination
Commission Queensland, Women in
Prison, 2006.
109. John L Pty Ltd v AttorneyGeneral (NSW) (1987) 163 CLR 508.
110. Criminal Procedure Act 2009
(Vic), s 147.
(Vic), s 111.
(Vic), s 111.
113. For example, see the
circumstances listed in section 19 of
the Supreme Court Act 1986 (Vic).
Also see Russell v Russell (1976)
134 CLR 495.
114. Australian Constitution 1901, s
80.
115. See, for example, sections 37
and 54 of the Criminal Procedure Act
2009 (Vic).
116.
Evidence Act 2008 (Vic), s 79.
117. See section 7 of the Sentencing

Act 1991 (Vic).
(Vic), s 207.
119. Sentencing Act 1991 (Vic), s
5(2).
120. For example, leave to appeal is

required for appeals against
convictions to the Victorian Court of
Appeal: Criminal Procedure Act 2009
(Vic), s 274.
121. R v Birks (1990) 19 NSWLR
677; Nudd v R (2006) 225 ALR 161;
TKWJ v R (2002) 212 CLR 124; R v
R [2008] SASC 35; R v Heeremans
(2007) 249 LSJS 49).
See Criminal Justice Systems Around the

World
Background
Brunei is a constitutional sultanate, and it achieved independence from England in
1984. The same family has ruled the country for over six centuries.
Type of System
The Judicial branch is composed by Courts of Magistrate, Sharia Courts, and the High
Court. The legal system is based on English common law, and for Muslims Sharia law
supersedes civil law with regard to marriages and inheritance.
The 1959 Constitution does not grant any right to defendants in criminal proceedings,
as well as any other right. The presence of a defense counsel is not envisioned
throughout the entire criminal proceeding, from the investigation phase to the
sentencing (Chapter XIX of the Criminal Procedure Code is titled "Trials without the Aid
of Assessors). The system is then based on the defendants self representation and
participation to the trial. As well, neither the privilege against self-incrimination, nor the
presumption of innocence are granted.
Some safeguards are still found in the Brunei Criminal Procedure Code, such as the
right to confront accusers, and the right to notice of charges.
Among the most important international human rights instruments, Brunei has ratified
only the Convention on the Rights of the Child and the Convention on the Elimination of
all Forms of Discriminations Against Women (CEDAW).
Defendants' Rights
Under the Criminal Procedure Code a warrant is required to arrest a person.

Nonetheless, the cases when an arrest can be made without a warrant are so broad
that almost nullify the previous rule (Sections 19, 28, 33 of the Criminal Code).
The preventive detention and the pre-trial detention do not require a warrant to be
executed, if there are reasons to believe that a person has been associated with
activities of a criminal nature, and he has to be detained in the interests of public safety,
peace and good order. The preventive detention can last up to 3 years, the pre-trial
detention can be extended up to 14 days if investigative reasons exist.
Any statement made by any person, including a person in the custody of a police officer,
made before or after that person is charged and whether in the course of a police
investigation or not is admissible as evidence. If that person tenders himself as a
witness, he can be cross examined. Courts have to verify if the statement is voluntary
questioning both the Prosecutor and the defendant.
See Criminal Justice Systems Around the World and Legal Aid in ASEAN countries
QUICK FACTS
2009 Prison Population: 423 people for a population of 400,000. This means 106
detainees for 100,000 people, of which 8.3% in pre-trial detention.
The atrocities committed by the Khmer Rouge regime killed an estimated 2 million
people, leaving Cambodia in ruins. By 1990 there were only 10 lawyers in all
of Cambodia, making legal services effectively non-existent. A constant parade of
transitional laws left the remaining lawyers confused and overwhelmed.
Despite all these hurdles, Cambodia is now a success story where formalized legal aid
is on the brink of becoming a reality. A fractured, but growing legal aid system now
exists in Cambodia with some form of NGO-provided legal aid in 20 of Cambodia's 24
provinces. For the first time, judges are directly appointing legal aid lawyers as counsel
at the time of arraignment in many provinces in Cambodia. However, a severe shortage
of properly trained defense lawyers continues to pose long-term problems for
Cambodia's legal aid system.
QUICK FACTS
In a survey of 799 defendants, 34% were tried in absentia, and only 43% had
counsel at trial. In the Appeals Courts, 69% of defendants were absent from their
own hearings.
Guide to Effective Advocacy in the Cambodian Criminal Justice System

Introduction
The purpose of this guide is to provide advice to criminal defense lawyers in Cambodia
on how to most effectively represent their clients. Criminal defense lawyers do this
through techniques of advocacy and persuasion, which we discuss below.[1]
Before turning to this discussion, our assumption is that the criminal defense lawyer has
studied - indeed mastered - the Cambodian Penal Code and the Code of Criminal
Procedure. These codes, particularly the procedure code, must be read over and over
again in order to learn all the rules that will protect your client and guarantee him or her
a fair trial.
There are, in our view, three qualities which every effective defense lawyer must have:
A sincere belief in your client's case. If your client is innocent or substantially

innocent, the sincerity of your belief in the client's case will transmit itself to
whomever you are trying to convince at the time, whether it be the police, the
prosecutor, the investigating judge or the trial judge. If there is little or any doubt that
your client has committed the offense, and there is proof of his guilt beyond a
reasonable doubt, you must still argue your client's cause as a human being to
convince the court to give lenient treatment. Treat the client as you would your
father, son or brother. Do not lose your ability to be objective about the case but
argue with passion that there were extenuating or mitigating circumstances
surrounding the commission of the crime.
The criminal defense lawyer must be resourceful. By that we mean the ability to
make the most of the facts and circumstances presented to you and often there is
very little. You must be creative enough to exploit to the fullest every bit of evidence
in favor of your client and to defuse as far as possible the counter-evidence
presented by the prosecution.
You must work hard. You will be successful in your case only if you have spent
sufficient time to master both the facts and the law. You should know more about the
case than anyone else in the courtroom.
Before any further discussion of principles of advocacy and persuasion, let us look at a
typical criminal case in a Cambodian courtroom. The overwhelming majority of cases both felonies and misdemeanors - are over in a day or less. Let us assume a felony
case (robbery, rape, theft, battery) is to be heard by three judges. The judges will have
the complete dossier of the case before them, including any reports, witness statements
and summaries of the evidence assembled by the police, the prosecutor and the
investigating judge. As a criminal defense lawyer, you have full access to this dossier
and you must make the most of it. You must spend all the time necessary to study this
material and make copies of any important documents. This is the raw material of your
case and you must look for weaknesses in the prosecution's case to create a
reasonable doubt in the minds of the judges. You must try to construct a theme - a
theory of the case based on the facts - that will make sense to the judges.
And you must be able to present your case quickly and with precision. Indeed, a very
large percentage of the cases are over in a morning or less so you have to get to the
heart of the case to convince the judges of the justice of your cause. Assuming that you
have done a thorough and complete investigation of the facts and circumstances of the
case, the tools of advocacy and persuasion that you will use at the trial will be the
opening statement, direct and cross examination and the closing argument. We will
discuss each of these matters in turn.
The Opening Statement
Questioning Witnesses in Court
Closing Arguments
Reference
1. International Bridges to Justice is most grateful to Delaine Swenson and
Herbert D. Bowman for their important and extensive contributions to the
contents of this Manual. Professor Swenson is a member of the Faculty of Law
at John Paul II Catholic University of Lublin, Poland. Mr. Bowman has provided
his expertise in International Legal Reform to the criminal justice systems of
various countries.
Background
The Republic of France has had a strong history from the start- it was one of the first
European countries to transition from feudalism to nation-state [1]. However, financially
irresponsible monarchs soon drove the nation to a revolution in which egalitarianism
and republicanism were favored over the previous estate system. It wasnt until 1958
that France formed the Fifth Republic, a mixed presidential/parliamentary system that
finally succeeded in balancing political power. Today, France is a leader within the
European Union and a strong economic player on the global stage. However, current
President Nicholas Sarkozy faces many challenges, including those of rapid
immigration, high unemployment, and a slowing economy. The religion of France is 8388% Roman Catholic and the national language is French. Although the majority of the
population is native European, there exists a growing community of North African and
Indochinese immigrants. [2]
Type of System
The French Republic has a civil law system in which an 800 article Code of Criminal
Procedure dictates all issues of criminal procedure. [3]
Due to the high degree of codification found in this procedural code, there is very little
case law in France. Interpretations and decisions made by French courts concerning
the Constitution or codes are not binding. [4] All French criminal cases are tried in one
three courts: major felonies are tried in the Assize Ccourt, delicts are tried in correctional
courts, and contraventions are tried in contravention courts. [5]
Sources of Defendants Rights
The French Court of Cassation exercises the power of review according to a set of
procedural guarantees that are based on the idea of the rights of the defense. These
rights are regarded as in line with principles of justice and equity. Additionally, the
French are guaranteed certain defense rights derived from the European Convention for
the Protection of Human Rights and Fundamental Freedoms, which is binding in French
courts. Due to recent decisions made by the French Court of Cassation, it is becoming
evident that the European Convention has been increasingly more influential on French
procedural law. [6] [7]
Pre-Trial Phase
French law does not use the same investigative concepts as the Anglo-American
systems. Instead, French law recognizes four types of investigations and the evidencegathering and arrest powers associated with each. The four types of French
investigation are: investigation of flagrant offenses, preliminary investigations,
identity checks, and formal judicial investigations performed by a magistrate. [8]. In the
case of an identity check, a person may be detained for a maximum of four hours. In the
case of an investigative arrest, a person may be detained for up to 48 hours. [9]
At the start of detention, the detainee must be made aware of the charges against him
in a language that he/she can understand, the nature of the crime that is being
investigated, and the period of detention that is allowed. The period of detention is 24
hours, with the possibility of a 48 hour extension. [10] Other rights that the defendant
must be informed of are: the right to have his family, cohabitant, or employer informed of
his detention, the right to be examined by a doctor (and a second time if the detention is
extended to 48 hours [11], and the right to speak immediately and privately with legal
counsel for up to 30 minutes. [12] [13]
According to French law, after the accused person has been formally charged with a
crime the investigation is considered complete and there is no need for a pre-trial
interrogation. [14] The detained has the right to immediate and private counsel with legal
representation for at least 30 minutes. The legal counsel must be informed of the nature
and date of the crime committed and is allowed to submit written observations in the
detention record. However, the counsel is not allowed to be present during interrogation
and does not have access to any police files or the detention record. [15] Additionally,
French law does not require that the detained is informed of their right to silence and
those detainees who do request legal counsel may be questioned before the arrival of
their counsel. [16] There does not appear to be any formal procedures regarding
identification procedures.
Court Procedures
French law does not specify the amount of time in which a detainee must be brought
before a court.[17]. In most cases, the investigatory detention only lasts 48 hours, at
which time the detainee is usually released, with or without a future court date.
However, there is no limitation that says detainees must be released after 48 hours, in
which case they may remain in custody longer. [18]
According to French law, in the event of a felony case the examining magistrate or the
examining chamber is required to issue formal charges. [19] All other cases must be
charged by the prosecutor or the civil party. Additionally, the French prosecutor has the
ability to refuse to invoke criminal law or to charge less serious crimes than the
evidence suggests. [20] In this case, the victim still has the right to independently insist on
the prosecution or investigation. [21]
The French equivalents to preliminary hearings are the reviews made by the examining
magistrates (JDI) and the examining chamber. [22] If the JDI decides that the crime
qualifies as a major felony the case is then sent to the Assize Court. Pre-trial motions
may be made either during a judicial investigation or at the beginning of a trial. These
motions must be submitted to the JDI or the examining chamber. The JDI or the
examining chamber must comply with the motion, or issue a decree detailing why the
motion has not been granted. [23] [24] In terms of discovery, the defendant is entitled to
review the full police dossier at certain stages of pre-trial procedure or right before the
commencement of the trial. [25] French criminal trials are oral and adversary in
nature. [26] [27] In the French criminal system, lay jurors are only found in the Assize Court
which tries major felony cases. Delicts are tried in correctional court, a court that is
comprised only of one or three professional judges and contraventions are tried in
contravention courts before only one judge. Only recently have French criminal courts
begun to accept such concepts as guilty pleas, plea bargains, and sentence leniency in
return for bargains. [28]Cases that follow the European Convention on Human Rights
have granted defendants broader rights than those previously granted under French
criminal procedure. Article 6.1 of the Convention further ensures that the defendant has
the right to a fair trial. [29] Additionally, Article 6.3.d gives the accused the right to
examine or have examined witnesses against him to obtain the attendance of witnesses
on his behalf under the same conditions as witnesses against him. [30] Cross
examination is allowed, but is rarely practiced. In the event of an expert witness, that
witness is usually appointed at either the trial court stage or at the pre-trial
proceedings. [31] Defendants are awarded the right to either appointed or retained legal
counsel in all cases. However, the majority of the trial is conducted by the judge and the
lawyer plays a limited role. [32] An individual who has been affected by a criminal offense
may either initiate prosecution or join an existing prosecution. [33] In both cases the
victim is entitled to demand restitution for damages caused. French judges are
appointed to their position and are almost always graduates of the national magistracy
school. [34] Rulings of either a correctional or contravention court may be appealed to the
Court of Appeals, while rulings made by the Assize Court must be made to the Appellate
Assize Court. [35]
See Criminal Justice Systems Around the World
Reference
1. www.state.gov/r/pa/ei/bgn
2. www.state.gov/r/pa/ei/bgn
6. 1978 Bull. Crim. No. 346
10. CPP Arts. 63-1

11. CPP Art. 63-3
12. CPP Art. 63-2
15. CPP Art. 63-4)
17. CPP Arts. 126 to 133
20. CPP Arts. 40, 40-1
22. CPP Arts. 79, 181, 191 to 128
23. CPP Arts. 82 to 82-2
26. CPP Arts. 306, 400, 427 (para. 2), 535, and 536
33. (CPP Arts. 2 to 2-21), Art. 338-1 et seq.)
France has a total prison population of 59,655, with every 96 per every 100,000
people in prison.
Approximately 27.7% of the French prison population consists of pre-trial

detainees and 1.1% is made up of juvenile prisoners.
France currently has 185 prison institutions with an official capacity of 47,672.
The current occupancy level of the French prison system is 118.1%.
Background
The Federal Republic of Germany is currently the largest economy in Europe and has
the second largest population in Europe, after Russia. [1] After two devastating world
wars, Germany was left economically and politically crippled (World Factbook). At the
end of World War II in 1945, Germany remained under Allied occupation and was
stripped of its colonial possessions abroad (World Factbook). The country was
eventually divided into the western Federal Republic of Germany (FRG) and the eastern
German Democratic Republic (GDR) (World Factbook). While the west embraced
integration with the western Europe and democracy, the east remained isolated behind
the Iron Curtain of Soviet rule (World Factbook). Finally in 1990, the Soviet Union
dissolved and Germany was unified (World Factbook). The capitol was established at
Berlin and the process of integrating the former communist east into the capitalist west
began (World Factbook). Today, Germany is recognized by many to be the economic

and political powerhouse of Europe (World Factbook). Approximately 91.5% of the
population is of German descent, 2.4% is of Turkish heritage, and 6.1% identify as
some other ethnicity (World Factbook). 68% of the German population is Christian,
while 28.3% is unaffiliated and 3.7% is Muslim. [2]
Type of system
German criminal procedure is based on the Code of Criminal Procedure that was
created in 1877. The German Constitution does not outline many guidelines regarding
criminal procedure, but it does provide certain stipulations regarding the criminal
process. Even though German criminal procedure law is strictly federal in nature, the
majority of criminal courts are located at the state level. At the highest level of these
state courts, there is the Federal Court of Appeals which is comprised of five panels that
deal with criminal matters. The Federal Court of Appeals is the highest authority in
instances of interpreting criminal law and criminal procedure law. [3]
Source of defendants rights
The German Constitution (Basic Law 1949) does not outline many provisions related to
criminal procedure, but does guarantee certain rights that are relevant to the criminal
process. [4] Rights guaranteed by the German Constitution include the right to the
freedom of movement [5], the inviolability of the home [6], and the right to secrecy of
communication [7].
Pre-trial phase
Article 2 of Basic Law states that everyone has the right to life and to bodily integrity.
The freedom of the person is inviolable. These rights can be abridged only on the basis
of a statute. [8] Additionally, article 104 of Basic Law forbids the maltreatment, either
physically or mentally, of prisoners or detainees. [9]
Article 13 of Basic Law upholds that the home is inviolable. Searches may only be
conducted if they have been warranted by a judge. Nevertheless, in 1998 Article 13 of
Basic Law was revised to allow the use of hidden microphones, etc. to survey houses in
the investigation of a crime. [10]
Only a judge has the authority to determine the duration of a detention period. If an
accused person has been detained without a judiciary order, the accused must be
brought before a judge as soon as possible in order to determine the detention period. It
is thus unlawful for the police to detain a suspect for longer than the end of the day
following their arrest. [11] In order for a suspect to be detained, there must be reasonable
suspicion that that person has committed a crime and that should he not be detained,
the criminal process and evidence would be compromised. [12]
At the time of interrogation, the accused must be informed of the crime of which they
are accused, that they have the right to either make a statement regarding the event or
remain silent, that they have the right to counsel even before being interrogated, and
that they have the right to ensure that officials take exonerating evidence. [13] At the time
of detention, the suspects relatives must be informed of the suspects

detention. [14] Additionally, the accused persons lawyer must be informed of the time
and place of an interrogation and has the right to be present at the
interrogation. [15] Defendants nonetheless, do not have the right to have counsel
appointed at the investigation stage of the criminal process. [16]
Court procedures
A prosecutor may only hold a suspect in pre-trial detention if the suspect has been
arrested and has been brought before a judge. A hearing before the judge thus must
take place by the end of the day following the arrest. [17] At this hearing, the defendants
legal counsel has a right to be informed of the hearing and has the right to be present at
the hearing.[18]
Only the prosecutor has the power to pursue charges against a suspect. If the
prosecutor believes that there is a reasonable probability that the suspect has
committed the crime, then he is legally obliged to press charges. [19] The defendant also
has the right to ask the court to take certain evidence into account before the trial. [20]
German criminal trials cases are usually tried before one to five judges, depending on
the seriousness of the crime committed. German trials do not use juries, but lay persons
are involved in the process occasionally as co-equal judges. [21] German courts do not
accept pleas of any kind. In the event that the defendant pleads guilty, the court must
still try him in order to find him guilty and convict him. [22]
German trials additionally may not exceed three weeks. If a trial does exceed three
weeks, the trial must start from the beginning. This rule was made in order to ensure
that trials were speedy and continuous in their fact finding. [23]
German prosecutors are neutral actors. They are legally bound to find both incriminating
evidence against the defendant as well as evidence that may exonerate
him. [24] Criminal cases that involve crimes of lesser seriousness are tried before one
professional judge and two lay judges. [25] For the most serious of offenses, a panel of
two or three professional judges and two lay judges preside. For serious crimes against
the security of the state, however, there are no lay judges present. [26].
Although lay judges are involved in court proceedings, their influence and participation
is limited. For example, they are not involved in the admission of a case or the
preparation of cases for trial. [27] Lay judges are required to be German citizens and
must be older than 25 years old, but younger than 70 years old. Lay judges also must
have lived in the community for less than one year, and may not be cabinet members,
judges, prosecutors, attorneys, police officers, or clergymen. [28]
The presiding judge conducts the majority of the trial. He determines what sequence
poof is taken in, has responsibility for the completeness of evidence [29], and interrogates
witnesses and the defendant.[30] The presiding judge has the responsibility of
subpoenaing witnesses to the stand. [31] In order for either the prosecutor or the
defendant to summon witnesses they must follow one of two procedures. The first way
they can summon a witness is to make a formal offer of proof to the court and demand
that that the witness be heard. The other way would be to have the witness directly
subpoenaed by the bailiff. [32]
German law does not recognize the defendant as a witness. Therefore, the defendant is
not required to tell the truth and has the right to remain silent in order to avoid selfincrimination. [33] Expert witnesses in German courts act as neutral participants.
Therefore, it is the presiding judge who appoints the expert witness. [34] The prosecutor
and the police, however, usually have a strong influence on the selection of the expert
witness. As a result, many public defenders complain that expert witnesses do not tend
to be neutral at all, but almost always favor the party responsible for their
appointment. [35]
Post-conviction
Appeals can be made against all judgments except for those delivered by appeal courts.
Both the defendant and the prosecutor have the right to make an appeal, but whereas
the prosecutor can appeal both acquittals and convictions, the defendant can only
appeal a conviction. [36]
German law recognizes two kinds of appeals, general appeals and appeals on legal
grounds. A general appeal may be made in the event that one of the parties feels they
have been wronged by the by judgment of a single judge. In this case, the court must be
obliged to hold a new trial. [37] Appeals on legal grounds may be made against every
judgment of a trial. State courts hear those cases tried in local courts [38] while appeals
from district or state courts are heard in the Federal Court of Appeals. [39] In order for an
appeal to be made on legal grounds, the appeal must assert that a violation of law
occurred. [40]
References
1. CIA World Factbook available at www.cia.gov/library/publications/the-worldfactbook
2. CIA World Factbook available at www.cia.gov/library/publications/the-worldfactbook
5. Basic Law, article 2, section 2, 2nd sentence
6. Basic Law, article 13

12. Code of Criminal Procedure, paragraph 112
13. Code of Criminal Procedure, paragraph 136, section 1
14. Code of Criminal Procedure, paragraph 114b
15. Code of Criminal Procedure, paragraph 168c, section 1 and paragraph 163a,
section 3
17. Code of Criminal Procedure, paragraphs 115 and 128
18. Code of Criminal Procedure, paragraph 168c, sections 1 and 5
20. Code of Criminal Procedure, paragraphs 201 and 202
23. Code of Criminal Procedure, paragraph 229
25. Code of Court Organization, paragraphs 24, 28, 29, section 1
26. Code of Court Organization, paragraphs 120, 122, section 2
27. Code of Court Organization, paragraph 30, section 2, paragraph 76, section 1
28. Code of Court Organization, paragraphs 33, 34

32. Code of Criminal Procedure, paragraph 220,
35. Craig M. Bradley, Criminal Procedure A Worldwide Study 267( 2d ed., Carolina
36. Code of Criminal Procedure, section 2, paragraph 296
37. Code of Court Organization, section 1, paragraph 76
40. Code of Criminal Procedure, section 1, paragraph 337
QUICK FACTS
Germany has a total prison population of 69,385, with every 85 per 100,000
people in prison
About 15.5% of the German prison population consists of pre-trial detainees and
about 3.5% consists of juvenile prisoners
Germany currently has 185 prison institutions with an official capacity of 77,944.
Occupancy is currently at 89%
English espaol
Background
Indonesia comprises 30 provinces, 2 special regions (Aceh and Yogyakarta), and 1
special capital city district (Jakarta Raya). Indonesias first free parliamentary election
after decades of repressive rule took place in 1999. The country is now the worlds thirdlargest democracy, and home to the worlds largest Muslim population.
Current issues include: alleviating poverty, improving education, preventing terrorism,
consolidating democracy after four decades of authoritarianism, implementing economic
and financial reforms, stemming corruption, and holding the military and police
accountable for past human rights violations.
Type of System
The Supreme Court (Mahkamah Agung) is the final court of appeal, but only the
Constitutional Court (Mahkamah Konstitusi) has the power of judicial review. Most
disputes appear before the courts of general jurisdiction, with the court of first instance
being the State Court (Pengadilan Negeri). There are about 250 State Courts
throughout Indonesia, each with its own territorial jurisdiction. Appeals from the State
Court are heard before the High Court (Pengadilan Tinggi), of which there are around
20 throughout Indonesia. The High Court is a district court of appeal. Appeals from
the High Court and, in some instances from the State Court, may be made to
the Supreme Court located in Jakarta.
The Indonesian legal system is based on Roman-Dutch law, substantially modified by
indigenous concepts and by new criminal procedures and election codes.
The Constitution was approved on August 1945, subsequently abrogated in the 50s
and restored in July 1959. The Constitution was last amended in 2002. The document
grants few rights related to judicial proceedings, such as the independence of the
judiciary, the equality before the law, the prohibition of ex post facto laws, and the right
to life and to be free from punishments. The death penalty, however, is still practiced.
Articles 28I and 28G Constitution grant the right to remain free from torture or inhuman
and degrading treatment and state that this is a fundamental human rights that shall
not be curtailed under any circumstance.
The Law of Criminal Procedure was adopted in 1981, and it provides different rights to
defendants in criminal proceedings.
Defendants' Rights
Pre-Trial
A warrant is requested in case of arrest, except in cases of flagrante delicto. An arrest
can be made only when a person is strongly presumed to have committed an offense
based on sufficient preliminary evidence. The arrest cannot last more than 24 hours. At
the time of arrest the arrestee has a right to notice of the charges. This right also applies
during court procedures.
During detention, a suspect or an accused has the right to contact his legal counsel,
send and receive from him documents (Articles 57,62 Law of Criminal Procedure). He
has also the right to be visited by a doctor, his family, and relatives.
During examinations, the accused has the right to have a counsel and be free from any
pressure whatsoever.
Pre trial detention requires a warrant or an order from the investigator, prosecutor, or
judge. The warrant can be executed when a person is strongly presumed to have
committed an offense, when there is sufficient evidence and there is concern that this
person will escape, damage, or destroy physical evidence and/or repeat the offense.
The offenses that can justify such detention must be punishable with 5 years or more of
imprisonment. The detention warrant is valid for 120 days at the most, depending on
who ordered it first. The suspect, his family, or legal counsel may file objections to the
detention with the investigator conducting the examination.
Trial
At the trial-phase, a notification to attend the hearing shall be made with a written
summon which has to be received from the accused at least 3 days before the
commencement of the trial. The prosecutor has to read his bill of indictment aloud, and
the judge must ascertain that the accused has thoroughly understood.
The rights to be assisted by a defense counsel and to file motions and raise objections,
are granted in Articles 198 and 156 of the Law of Criminal Procedure.
The testimony of the accused is considered a legal mean of proof, and leading
questions cannot be used during his examination (Articles 148 and 166 Law of Criminal
Procedure).
A judge must not impose a penalty upon a person except when, with at least two legal
means of proof, he has come to the conviction that an offense has truly occurred and
that it is the accused who is guilty of committing it.
Post-Conviction
The accused, his counsel, and the public prosecutor have the right to appeal against a
judgment of a court of first instance, except against a judgment of acquittal or a
dismissal of all charges which relates to a matter of the inappropriate application of law,
and a judgment under express procedures (Articles 67 and 233 Law of Criminal
Procedure). The accused or the public prosecutor may also lodge a petition for
cassation to the Supreme Court with regard to a judgment in a criminal case, rendered
at last resort.
Moreover, the Law of Criminal Procedure provides the possibility for a convicted person
or his heirs to submit a request to the supreme court to reconsider a final judgment
(except for an acquittal or dismissal of charges), on the following grounds: new
circumstances which give rise to a strong presumption that if they would have been
know at trial, the outcome would have been an acquittal/dismissal; the matter or the
circumstances founding the judgment are evidently mutually contraddictory; or clear
mistake of the judge or manifest error.
QUICK FACTS
2009 Prison Population: 140.740 with 61 detainees for 100,000 people, based on
an estimated national population of 230 million. 41.5% of the prison population is
composed of pre-trial detainees or remand prisoners.
English espaol
Category:
Pages with too many expensive parser function calls
Background
Following Japans Defeat in the Pacific War in 1945, General Douglas MacArthur took
control of Japanese territories, serving as the Supreme Commander for the Allied
Powers (SCAP). As the SCAP, MacArthur sought to democratize Japan, implementing
several fundamental systemic changes to the existing system. In the span of two years,
the Japanese imperial military was dismantled, the economy was democratized,
separation of church and state was enacted, and individual rights were established
through the abolishment of legislation that restricted political, civil, and religious liberties.
On May 1947, Japan adopted a new constitution matching MacArthurs system reforms;
this constitution guaranteed popular sovereignty, liberal democracy, and fundamental
human rights. It also maintained that the emperor should serve as a symbol without
political power, and that the individual should come before society and state. Apart from
constitutional law, acts such as The Diet Act, the Cabinet Act and the Judiciary Act also
have constitutional significance in the Japanese Judicial System.
Today, Japan is a homogenous country. 99% of its population, of 127,000,000 citizens,
is Japanese. Its criminal justice system is said to have one of the highest conviction
rates in Asia. Despite constitutional provisions banning torture, forced confessions are
said to be frequent. Many defendants are convicted on nothing more than a confession
with little or no corroborating evidence.
Type of System
Japan's criminal justice system is generally considered inquisitorial and is based on the
civil law model in which the judge plays a significant role in investigation and trial.
Japans system generally emphasizes statutes and codes over precedence and case
laws. Like South Korea and Taiwan, the Japanese civil law system is composed of Six
Codes. These include the Constitution of Japan (1946), the Civil Code (1896), the Code
of Civil Procedure (1996), the Code of Criminal Procedures (1907), the Code of Criminal
Procedure (1948) and the Commercial Code (1899).
Legal Aid Situation in Country
State Sponsored Legal Aid
In 1952, the Japan Federation of Bar Associations (JFBA) founded the Japan Legal Aid
Association with the objective of providing accessible judicial aid and legal advice to
every day citizens, as guaranteed by the Japanese Constitution. In 2000, the Civil Legal
Aid Law took effect, guaranteeing that legal aid services would be provided to citizens in
regards to civil cases. Similarly, the Comprehensive Legal Service Law and the Japan
Legal Support Centre provide court-appointed attorneys for defendants in criminal
cases.
Number of Lawyers
In 2000, the Japan Federation of Bar Associations (JFBA) estimated that 21,264
attorneys were registered in the country. Since then, JFBA numbers have demonstrated
that the legal field has undergone significant development. As of 2012, JFBA reported
that approximately 36,824 attorneys were registered with the association. As the bar
examination tests law candidates in public law, civil law and criminal law, certified
attorneys in Japan are generally qualified to practice in most Japanese legal
professions.

Article 31 through 40 of the Constitution of Japan enumerate many rights the accused
are entitled to in Japan. These provisions are interpreted by the Supreme Court of
Japan.
I. Fundamental Human Rights:
Article 11 states that the people shall not be prevented from enjoying any of the
fundamental human rights. These fundamental human rights guaranteed to the people
by this Constitution shall be conferred upon the people of this and future generations as
eternal and inviolate rights.
II. Right to Freedom:
Article 12 states that the freedoms and rights guaranteed to the people by this
constitution shall be maintained by the constant endeavour of the people, who shall
refrain from any abuse of these freedoms and rights and shall always be responsible for
utilizing them for the public welfare.
III. Pursuit of Happiness:'
Article 13 also suggests that individuals should have basic respect, right to life, liberty
and the pursuit of happiness inasmuch as these goals do not interfere with public
welfare.
IV. Equality:
Article 14 disallows discrimination in political, economic, and social realms, suggesting

that all people are equal under the law regardless of race, creed, sex, social status, or
family origin.
V. Democracy:
Under Article 15, Individuals are also granted the right to choose and dismiss their
representatives and officials.
VI. Rights Pertaining to Criminal Justice: The constitution guarantees access to court
and prevents unlawful detention, as officers carrying out arrests must hold warrants
issued by a competent judicial officer. Seized individuals must be informed of the
charges against him or her, as well as his or her immediate right to counsel. Defendants
are guaranteed a speedy and impartial trial. They are protected from the infliction of
torture and cruel punishments from any public officer, and they are not required to testify
against themselves.
VII. Presumption of Innocence
When the case under public prosecution does not constitute a crime or has not been
proven to be a crime, the court shall render a not guilty verdict in the judgment. (Article
336)
VIII. Impartial Trial
Article 17 states that A public prosecutor shall request the next higher court of the court
concerned to effect a change of jurisdiction when: (i) The competent court is unable to
exercise its jurisdiction owing to legal reasons or special circumstances; (ii) There is the
fear that the impartiality of the trial cannot be maintained owing to the general sentiment
of the local people in the district, the state of the proceedings or any other
circumstances.
In the cases prescribed in each of the items of the preceding paragraph, the accused
may also request a change of jurisdiction.
Several laws pertaining to trial and criminal justice are listed below:
Article 32. No person shall be denied the right of access to the courts.
Article 33. No person shall be apprehended except upon warrant issued by a competent
judicial officer which specifies the offense with which the person is charged, unless he is
apprehended, the offense being committed.
Article 34. No person shall be arrested or detained without being at once informed of the
charges against him or without the immediate privilege of counsel; nor shall he be
detained without adequate cause; and upon demand of any person such cause must be
immediately shown in open court in his presence and the presence of his counsel.
Article 35. The right of all persons to be secure in their homes, papers and effects
against entries, searches and seizures shall not be impaired except upon warrant
issued for adequate cause and particularly describing the place to be searched and
things to be seized, or except as provided by Article 33. Each search or seizure shall be
made upon separate warrant issued by a competent judicial officer.
Article 36. The infliction of torture by any public officer and cruel punishments are
absolutely forbidden.
Article 37. In all criminal cases the accused shall enjoy the right to a speedy and public
trial by an impartial tribunal. He shall be permitted full opportunity to examine all
witnesses, and he shall have the right of compulsory process for obtaining witnesses on
his behalf at public expense. At all times the accused shall have the assistance of
competent counsel who shall, if the accused is unable to secure the same by his own
efforts, be assigned to his use by the State.
Article 38. No person shall be compelled to testify against himself. Confession made
under compulsion, torture or threat, or after prolonged arrest or detention shall not be
admitted in evidence. No person shall be convicted or punished in cases where the only
proof against him is his own confession.
Article 39. No person shall be held criminally liable for an act which was lawful at the
time it was committed, or of which he has been acquitted, nor shall he be placed in
double jeopardy.
Article 40. Any person, in case he is acquitted after he has been arrested or detained,
may sue the State for redress as provided by law.
Defendants' Rights
Defendants are entitled to notice of charges [1] and adequate counsel at time of arrest. [2]
Defendants have the right to remain silent: "In the case of interrogation ..., the suspect
shall, in advance, be notified that he or she is not required to make a statement against
his or her will."[3]
Pre-Trial
I. Complaint
Individuals who may file complaints include a victim injured by an offense. Similarly, a
statutory representative of a victim may also file a complaint (Article 230.) In cases in
which the victim has died, spouses, lineal relatives, brothers or sisters may file
complaints, but not when it is against the expressed wishes of the victim (Article 231). If
a statutory representative is the suspect the spouse of the suspect, a blood relative
(within the fourth degree of kinship, or a relative by affinity within the third degree of
kinship of the suspect) may file a complaint independently (Article 232).
When a deceased individual has been defamed, his or her relatives or descendants
may file a complaint (Article 233). This shall apply in cases in which the victim was
defamed prior to death, but has died without filing a complaint (provided that the
complaint does not go against expressed wishes of the victim (Article 234).
Where there is no person who can file a complaint with regard to an offense
prosecutable upon a complaint, a public prosecutor may, upon the application of an
interested person, designate a person who can file a complaint (Article 235)
Complaints should be filed with a public prosecutor or a judicial police official either
orally or in writing. The public prosecutor shall make a written statement in the case of
oral complaints and accusations, and a judicial official shall send the documents and
articles of evidence regarding a complaint or accusation to a public prosecutor
immediately upon receipt of a complaint or accusation (Article 241 and 242).
The Code of Criminal Procedure specifies with respect to an offense prosecutable
upon a complaint, no complaint shall be made after the lapse of six months from the day
on which the complainant knew the offender. Exceptions to the case can be found in
Article 235.
II. Arrest
An individual may be arrested upon issuance of a warrant issued by a competent
judicial officer. In serious cases, police may make a warrantless arrest. However, the
warrant must be obtained immediately thereafter. It must specify the offense. Extensive
pre-trial detention is prohibited under Article 34 of the Constitution and an arresstee
must be produced in open court immediately upon request. Police have 48 hours to
produce a defendant before the prosecutor.[4] Then, the prosecutor has 24 hours to
decide whether to prosecute.[5] If he choses to prosecute, the defendant must be
brought to court. Searches and seizures generally require a warrant issued for adequate
cause.
"The infliction of torture by any officer and cruel punishements are absolutely forbidden"
under the Constitution of Japan[6]
III. Search
Article 103 of the Code of Criminal Procedures details that the court may, when it is
necessary, search the body, articles, residence or any other place of the accused. The
body, articles, residence or any other place of a person other than the accused may be
searched only when it is reasonably supposed that articles which should be seized
exist. (Article 103)
Articles retained or possessed by a public officer or ex-public officer may not be seized
without the consent of his/her supervisory public agency, when he/she or the public
agency asserts that the articles pertain to official confidential information; provided,
however, that the supervisory public agency may not refuse consent except where the
seizure may harm important national interests. (Article 104)
IV. Seizure
Article 99 of the Code of Criminal Procedures states that the court may seize or
confiscate articles of evidence when necessary. (Article 99) The court may order the
possessor, owner, or custodian of the article to submit the item(s) in question. (Article
100) Article 101 also allows the court to seize postal items or telegram documents sent
to or by the accused which are retained or possessed by public agency of
communications or other individuals provided that these items are reasonably related to
the case.
When the court has made the disposition in the preceding two
paragraphs, the sender or recipient shall be so notified. This
shall not apply when there is the fear that such notification
would obstruct court proceedings. (Article 101)
Seized Items may be retained. (Article 102)
V.Interrogation
As stated in Article 198, public prosecutors, public prosecutors assistant officers or
judicial police officials may ask any suspect to appear in their offices for interrogation, if
necessary for the investigation of a crime. The suspect may refuse to appear or
withdraw after he or she has appeared if he or she is not under arrest or under
detention.
The process for interrogation is as follwos: 1. The suspect shall be notified in advance
that he or she is not required to make a statement against his or her will. 2. The
statement of the suspect may be recorded in a written statement. 3. The written
statement set forth in the preceding paragraph shall be inspected by the suspect or read
to him/her for verification, and if he/she makes a motion for any addition, removal or
alteration, his/her remarks shall be entered in the written statement. 4. If the suspect
affirms that the contents of the written statement are correct, he/she may be asked to
attach his/her signature and seal to it; provided, however, that this shall not apply when
the suspect refuses to do so.(Article 198)
In cases in which a person who apparently possesses information essential to the
investigation of a crime refuses to appear or make a statement voluntarily at the
interrogation pursuant to the provision of paragraph 1 of Article 223, a public prosecutor
may, only before the first trial date, request a judge to examine him/her as a
witness(Article 226).
VI. Other pre-Trial Proceedings
(1) When the court deems it necessary to conduct productive proceedings of a trial
consecutively, systematically and speedily, the court may, after hearing the opinions of
the public prosecutor and the accused or his/her counsel and prior to the first trial date,
order on a ruling that the case be subject to a pretrial arrangement proceeding as trial
preparation for arrangement of the issues and evidence of the case (Article 316-2).
Prior to the first trial date, the Code of Criminal Procedures indicates, the judge shall
take charge of the disposition concerning detention (Article 280). During detention, the
judge shall immediately notify the accused of the facts charged, his/her statement, and,
unless issuing a detention warrant, shall order release of the accused immediately
(Article 280).
The court can order pre-trial arrangements based off of the opinions of the public
prosecutor, the accused, and or his or her counsel. During Pre-trial hearings, issues and
evidence of the case shall be arranged and prepared for trial, and persons concerned
shall appear in court and make statements or produce relevant documents. Pre-trial
arrangements shall be conducted systematically and speedily, and individuals involved
should cooperate with the court willingly. No pre-trial proceedings may be conducted
when the accused does not have counsel. Under circumstances in which the accused
does not have access to counsel, the presiding judge shall appointed counsel ex
officio. (Article 316)
The following activities may be conducted during pre-trial arrangements
A. Clarification of the counts or applicable penal statutes B. Permission for addition,
revocation, or alteration of the counts or applicable penal statutes C. Arrangement of the
issues of the case by disclosing the allegation planned to be given on the trial date D.
Requests for evidence examination E. Disclosure of evidence and matters to be proven
and examined F. Confirmation of the opinion concerning the request for examination of
evidence (including whether or not to give the consent prescribed in Article 326 for the
documentary evidence) G. A ruling to examine the evidence or dismiss the request for
examination of evidence H. Decision on the order and method of examining evidence

for which a ruling for examination has been made I. Rendering of a ruling on the filing of
an objection against the examination of evidence J. Rendering of a ruling on the
disclosure of evidence pursuant to the provisions of item K. Setting or changing of the
trial dates and a decision on other necessary matters for the proceedings of the trial
Article 316-5
Proceedings of Pre-Trial Hearings: The presiding judge shall set the date of the pretrial
arrangement proceeding when he/she is to have persons concerned in the case appear
in court. The date of the pretrial arrangement proceeding shall be notified to the public
prosecutor, the accused and his/her counsel. The presiding judge may change the date
of the pretrial arrangement proceeding upon the request of the public prosecutor, the
accused or his/her counsel or ex officio. In this case, then presiding judge shall hear the
opinions of the public prosecutor and the accused or his/her counsel in advance
pursuant to the Rules of Court. (Article 316-6)
When the public prosecutor or the defense counsel does not appear on the date of the
pretrial arrangement proceeding, the proceedings on that date may not be conducted.
(Article 316-7)
(1) When there is a risk that the defense counsel will not appear on the date of the
pretrial arrangement proceeding or when he/she leaves the proceeding, the presiding
judge shall appoint defense counsel ex officio. (2) When the defense counsel is likely
not to appear on the date of the pretrial arrangement proceeding, the court may appoint
defense counsel ex officio. (Article 316-8)
(1) The accused may appear on the date of the pretrial arrangement proceeding. (2)
When the court deems it to be necessary, it may ask the accused to appear on the date
of the pretrial arrangement proceeding. (3) When the accused is to appear at the pretrial
arrangement proceeding, the presiding judge shall, on the first date that the accused is
to appear, begin by giving notification to the accused that he/she may remain silent at all
times or may refuse to answer particular questions. (Article 316-9)
Trial
Japan eliminated the jury trial in 1943. Today, the majority of criminal cases are tried
before either one or three judges, depending on the charge. Defendants have the right
to a public and open trial. Defense attorneys may cross-examine witnesses and have
the right to compulsory process[7]. In 2009 new legislation reintroduced the jury system
in the form of lay judges. However, these are only available in certain serious cases.
Judges take an active role in the trial, calling witness, requesting evidence and
determining both the guilt and sentence phases of the case.
I. Standards of Proof
When pronouncing a sentence, the court shall signify the facts constituting the crime,
the list of evidence, and the application of laws and regulations. When a reason to
preclude establishment of the crime by act or grounds for aggravation or reduction of
the punishment have been argued, the court shall render an opinion on it (Article 335.)
II. Witnesses
Article 143 in the Criminal Procedure Code states that the court may examine any
person as a witness. Articles 146-149 detail cases in which an individual may refuse to
serve as a witness (e.g. if it may compromise themselves, their spouses or their
professional oaths.)
Witnesses shall swear an oath (Article 154), and the court may have witnesses testify
on matters inferred from things which he or she has actually experienced.
The public prosecutor and the accused (or the counsel of the accused) may attend the
examination of a witness (Article 157).
The court shall also conduct assessments on the witness following testimony: In the
examination of a witness the court may, after hearing the opinions of the public
prosecutor and the accused or his/her counsel, when, taking into account the witness's
age, mental or physical condition or other circumstances, the witness is likely to feel
extreme anxiety or tension, have the witness accompanied during the testimony of the
witness by those who are appropriate in easing the witness's anxiety or tension, and are
unlikely to disturb examination by a judge or persons concerned in the case or the
testimony of the witness, and are unlikely to unduly influence the contents of the
testimony Article 157-2
The recording medium on which the examination, the testimony and the circumstances
of the witness are recorded in accordance with the preceding paragraph shall be
attached to the case records as part of the trial records (Article 157-4).
Post-Conviction
Both defendants and prosecutors have the right to appeal a trial court decision. Appeals
to the Supreme Court are limited to questions of a Constitutional nature. If the
defendant was detained during the case and is later declared not guilty, they may be
entitled to compensation from the state for the period of detention. [8] Defendants who
have been acquitted may not be charged with the same crime [9]

QUICK FACTS
2009 Prison Population: 75,250.
Notes
1. Constitution of Japan, Art. 33

2. Constitution of Japan, Art. 33; "The accused or a suspect in custody may,
without having an official present, have an interview with his or her defense
counsel or any other person who is going to be his or her defense counsel upon
request of the person who is entitled to appoint defense counsel ... and may
deliver or receive any documents or any other articles to or from the defense
counsel or said person." Japan Criminal Procedure Code Article 39(1)
3. Japan Criminal Procedure Code, Art. 198(2)
4. Japan Criminal Procedure Code, Art. 203(1)
5. Japan Criminal Procedure Code, Art. 205
7. Constitution of Japan, Art. 37(2)
Background
Malaysia comprises 13 states and 1 federal territory with three components: the city of
Kuala Lumpur (the capital), Labuan, and Putrajaya. Malaysia was a British colony and
protectorate in the late 18th and 19th centuries, it was occupied by Japan from 1942 to
1945, and it became independent from Great Britain in 1957.
Malaysia is a constitutional monarchy, headed by the King and a bicameral Parliament

consisting of a non-elected upper house and an elected lower house. All peninsular
Malaysian states have hereditary rulers called sultans, except Melaka and Pulau
Pinang, which have governors.
Type of System
The Malaysian judicial branch is made up of the superior courts and the subordinate
courts. The superior courts comprise the Federal Court (the highest court), the Court of
Appeal and the two High Courts. By virtue of Article121(1) of the Federal Constitution
judicial power in the Federation is vested in two High Courts of Coordinate Jurisdiction
and Status, namely the High Court of Malaysia for Peninsular Malaysia and the High
Court of Borneo for Sabah and Sarawak. Inferior courts may be created by federal law.
The subordinate courts consist of the Sessions Court, Magistrates Court and the
Penghulus Courts. The Subordinate Courts in Sabah and Sarawak consist of the
Sessions Court, Magistrates Courts and Native Courts. In the hierarchy of Subordinate
Courts the lowest is the Penghulus Court. A Penghulu is a headman appointed by a
state government. The criminal jurisdiction of a Penghulus Court is limited to the trial of
offences of a minor nature. In addition, there is also a juvenile court for offenders below
the age of 18.
The legal system is based on English common law. Islamic law, however, is applied to
Muslims in matters of family law and religion.
The Constitution was approved on 31 August 1957, and it has been amended many
times. Part II is titled Fundamental Liberties, and it contains some fundamental rights
related to criminal proceedings, such as the equality before the law, the prohibition of ex
post facto laws, the double jeopardy principle, and the privilege against self
incrimination. The Criminal Procedure Code, Act 593, however, is the principal source of
defendants rights.
Defendants' Rights
A warrant is required to make an arrest, but, there are many exceptions to the rule
(Article 23 Criminal Procedure Code). Article 5 of the Constitution requires that when a
person is arrested, he shall be informed as soon as possible of the grounds of his arrest
and shall be allowed to consult with and be defended by a legal practitioner of his
choice. The same provision states that if a complaint is made to a High Court or any
judge that a person is being unlawfully detained, the court shall inquire into the
complaint and, unless satisfied that the detention is lawful, shall order him to be
produced before the court and release him.
An arrested person must be produced before a magistrate without unreasonable delay,
and in any case within 24 hours (Articles 5(4) Constitution, 28 Criminal Procedure
Code ). If the investigation cannot be completed within this timeframe, and there are
grounds for believing that the accusation or information is well founded, upon the
request of the police officer making the investigation, the Magistrate may authorize the
detention of the accused for a term not exceeding fifteen days(Article 117 Criminal
Procedure Code).
Any statement made at any time, whether before or after the person is charged,
whether in the course of a police investigation or not, and whether or not wholly or partly
in answer to questions, shall be admissible in evidence at his trial. Additionally, if the
person charged tenders himself as a witness, any such statement may be used in
cross-examination and for the purpose of impeaching his credibility. According to Article
113 Criminal Procedure Code, no such statement is admissible if the making of the
statement appears to the court to have been caused by any inducement, threat, or
promise having reference to the charge.
Post-Conviction
The system gives the possibility to appeal the judgment of a magistrate or of the High
Court, and also the possibility of revision. A judge may indeed examine the record of
any proceeding before any subordinate criminal court for the purpose of satisfying
himself as to the correctness, legality or propriety of any finding, sentence or order
recorded or passed, and as to the regularity of any proceedings of that subordinate
court. However, no party has any right to be heard, either personally or by advocate, but
the judge may, if he thinks fit, hear any party (Article 323 Criminal Procedure Code).
QUICK FACTS
There are 36,040 held in Malaysian prison. 32.3% are pre-trial detainees and
remand prisoners.
English espaol
Category:
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Russia
English espaol
Contents
[hide]
1 Additional
Resources
2 Background
3 Type of system
4 Sources of
Defendant's rights
4.1 Constitutio
o
n
o
4.2 Statutory
4.3 Other
Sources
4.4 Protections
from police
4.4.1 Ide
ntity Checks
4.4.2 Sto
p and Frisks
4.4.3 Rig
ht to silence
4.4.4 Rig
ht to counsel
4.4.5 Co
nfessions
4.4.6 Se
arch and seizure

4.4.7 Arr
est
4.5 During
detention
4.5.1 Fre
edom from
prolonged pre-trial
detention
4.5.2 Fre
edom from
punishment
4.5.3 Rig
ht to counsel
4.5.4 Rig
ht to habeas
corpus
4.5.5 Rig
ht to medical care
4.6 Rights at
o
trial
4.6.1 Do
uble jeopardy
4.6.2 Leg
ality principle
4.6.3 Pre
sumption of
innocence
4.6.4 Sta
ndards of proof
and standards for
conviction
4.6.5 Rig
ht to compulsory
process
4.6.6 Rig
ht to confront
witnesses
4.6.7 Rig
ht to counsel
4.6.8 Rig
ht to a fair trial
4.6.9 Rig
ht to notice of
charges
4.6.10 Ri
ght to non selfincrimination
4.6.11 Ri
ght to a speedy
trial
4.6.12 Ri
ght to trial by jury
4.6.13 Ri
ght to impartial
judge
4.7 Sentencing
4.7.1 Ca
pital punishment
4.7.2 Expost facto

punishment
4.7.3 Fre
edom from cruel or
unusual
punishment
4.7.4 Fre
edom from torture
4.7.5 Rig
ht to appeal
4.7.6 Rig
ht not to be fined
excessively
4.8 Rights in
o
prison
4.8.1 Co
nditions of
confinement
4.8.2 Im
migrant detention
4.8.3 Rig
ht to medical care
in prison
4.8.4 Me
ntal health care
4.8.5 Res
triction of rights
4.8.6 Wo
men's rights in
prison
5 Ways to protects
rights
o
5.1 Motions
5.2 Exclusionar
y Rule or Nullity of
Procedure
5.3 Civil Action
6 Police Procedures
6.1 Complaint/i
nformation
6.2 Arrest,
search and seizure

laws
6.2.1 Sto
ps and Frisks
6.2.2 Arr
ests
6.2.3 Pre
-trial detention
6.2.4 Se
arches
6.3 Lineups
and other
identification
procedures
6.4 Interrogati
o
on
6.4.1 Bef
ore formal charge
in court
6.4.2 Aft
er defendant is
formally charged
6.4.3 Enf
orcing the rules

(procedures to
protect against
illegal
interrogation)
6.5 Right to
o
counsel
7 Court Procedures
7.1 Pre-trial
7.1.1 Init
ial CourtAppearance
7.1.2 Ch
arging instrument
7.1.3 Pre
liminary hearing
7.1.4 Pre
-trial motions
7.1.5 Dis
covery
7.2 Trial
7.2.1 Nat
ure of the trial

7.2.2 Def
endant
7.2.3 La
wyers
7.2.4 Ex
pert witnesses
7.2.5 Jud
ges
7.2.6 Vic
tims
o
7.3 Sentencing
7.4 Appeals
7.4.1 Rig
ht to counsel
7.4.2 Ine
ffective assistance
of counsel
7.4.3 Oth
er grounds for
appeals
7.4.4 Col
lateral remedies
(habeas, etc)
7.5 QUICK
o
FACTS
Additional Resources
The Constitution of
the Russian Federation
(English)
The Criminal Code of

the Russian Federation
(English)
The Criminal
Procedural Code of the
Russian Federation
(English)
Background
The Russian Federation is the biggest country all over the world, with its territory of 17
million sq. km. and 139.4 million of people, Moscow is its capital. Following the Russian
revolution 1917, Russia became the largest and leading constituent of the Soviet Union,
the world's first constitutionally socialist state and a recognized superpower. The
Russian Federation was founded following the dissolution of the Soviet Union in 1991,
but is recognized as the continuing legal personality of the Soviet state. Russia is a
permanent member of the United Nations Security Council, a member of the G8, G20,
the Council of Europe, the Asia-Pacific Economic Cooperation, the Shanghai
Cooperation Organization, the Eurasian Economic Community, the Organization for
Security and Cooperation in Europe (OSCE), and is the leading member of the
Commonwealth of Independent States.
Type of system
The legal system of the Russian Federation is civil legal system inspired by Roman
law, the primary feature of which is that laws are written into a collection and codified.
The judiciary in Russia is split into three branches: the regular court system with the
Supreme Court at the top, the arbitration court system with the High Court of Arbitration
on top, the Constitutional Court and constitutional (charter) courts of the subjects of
federation as separate bodies. Criminal cases are heard by magistrates courts, courts
of districts, courts of federal subjects (states), Supreme Court depending on the severity
of a crime.
Sources of Defendant's rights
Constitution
Some fundamental defendants rights are guaranteed by the Constitution of Russian
Federation adopted 12 of December, 1993. Moreover, the universally-recognized norms
of international law and international treaties and agreements of the Russian Federation
are a component part of its legal system. It means that after ratifying a treaty Russian
Federation has an obligation to integrate the treatys norms into national legislation.
article 20 right to have the case examined by jury trial;
article 22 time limitation of the detention without the courts decision;
article 23 right to privacy of letters limited only by court warrant;
article 24 - ensure right to discovery for everyone;
article 25 privacy of the home;
article 46 guarantee judicial protection of freedoms and rights, the right to

appeal to international bodies;
article 47 - the right to the consideration of the case in competent court;
article 48 - the right to qualified legal assistance, the right to receive assistance of
a lawyer (counsel for the defense) from the moment of detention, confinement in
custody or facing charges;
article 49 the presumption of innocence;
article 50 double jeopardy, the right to appeal against the judgment of a lower
court decision to a superior court;
article 51 the right not to give self-incrimination evidence or against

husband/wife and close relatives;
article 54 Ex Post Facto.
Statutory
The Code of Criminal procedure (CCP) of 2001 contains the variety of defendants
rights at all stages of the criminal process.
Other Sources
Russian law implements the rights provided by following the most important
international documents: International Covenant on Civil and political Rights (ratification
- 1973), International Covenant on Economic, Social and Cultural Rights (ratification 1973), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (ratification 1987), European Convention on Human Rights and its Five
Protocols (ratification 1998), the Convention on the Rights of the Child (ratification 1990), United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo
Rules) (ratification - 1973), the Convention on the Elimination of all Forms of
Discriminations Against Women (ratification - 1981).
Protections from police
Article 13 of the law On the police contains grants and limits of the rights of the
police.
Article 53 of the law On the police - the right to appeal against police officers
actions in violation of the rights and lawful interests of citizens.
Identity Checks
The police have a right to check identity documents of citizens, if there is a reason to
suspect them of committing a crime or belief that they are wanted.
Stop and Frisks
The police have a right to carry out personal searches of citizens and their property,
when there is evidence that these citizens have a weapon, explosive devices, drugs,
psychotropic substances.
Right to silence
Article 51 of the Constitution guarantees the freedom from self-incrimination.
Article 47 of the CCP - the accused has the right to give evidence, not an
obligation that means he may deny giving it.
Article 173 of the CCP - if the accused refuses to give evidence, the investigator
should note it.
Right to counsel
Article 48 of the Constitution - everyone is guaranteed the right to qualified legal

assistance. If the defendant cannot provide a lawyer for himself, he/she may ask the
state for legal assistance and it is free. Any person detained, taken into custody,
accused of committing a crime have the right to receive assistance of a lawyer
(counsel for the defense) from the moment of detention, confinement in custody or
being charged.
Confessions
See the right to silence.
Chapter 40 of the CCP contains a special order of judicial proceeding when the accused
agrees with the charge brought against him and asks for passing a sentence without
conducting the judicial proceedings. There must be consent of the public or of the
private prosecutor and of the victim as well.
Search and seizure

Article 182 of the CCP: making a search is allowed if there is a sufficient data to
believe that the person may keep in the place the instruments of crime, objects,
documents and valuables. The search is to be performed on the basis of an
investigator's resolution. The search in the living quarters is to be effected on the
basis of a judicial order.
Article 183 of the CCP: the seizure is allowed if it is known exactly where certain
objects and documents are and who is keeping them. The seizure is to be
performed on the basis of an investigator's resolution. The seizure of the accounts
and other bank documents is to be effected on the basis of the judicial order. Before
the start of the seizure, the investigator suggests the subject to the seizure to be
given out voluntarily, and if not, he makes the seizure under coercion.
Arrest
The police protect everyone's right to liberty and security. Before the court's decision the
person may not be detained for more than 48 hours.
Article 14 of the law On the police provides the polices right to arrest persons
under the specific circumstances. In each case the officer must explain the person
detained his right to counsel, right to an interpreter, the right to inform relatives or
close persons of the fact of his detention, the right to refuse to give an explanation.
During detention
Freedom from prolonged pre-trial detention
Article 94 of the CCP - after an expiry of 48 hours from the moment of detention,
the suspect is to be released. There are two exceptions: if the court issues an order
for taking into custody or the court extends the term of detention.
See more in pre-trial detention (police procedure).

Freedom from punishment
Article 49 of the Constitution guarantees the presumption of innocence. A

defendant facing criminal prosecution is considered innocent until proven guilty.
Right to counsel
Article 48 of the Constitution - any person detained, taken into custody, accused
of committing a crime shall have the right to receive assistance of a lawyer (counsel
for the defense) from the moment of detention, confinement in custody or facing
charges accordingly.
Article 49 of CCP - the counsel for the defense takes part in the criminal case as
from the moment of the actual detention of the person suspected of committing a
crime.
Right to habeas corpus

There is no right to habeas corpus.
Right to medical care
Article 17 of the federal law On the detention of persons suspected or accused

of committing crimes - suspects and accused have the right to receive free healthcare provision.
Rights at trial
Double jeopardy
Article 50 of the Constitution guarantees that no one may be convicted twice for
one and the same crime.
Article 6 of the Criminal Code of the Russian Federation states that no one may
bear double criminal jeopardize for one and the same crime.
Legality principle
Article 7 of the CCP The court and officials cannot apply laws contradicting to
the CCP. The rulings of the court, the resolutions of the judge, of the prosecutor, the
investigator and the inquirer must be lawful, substantiated and motivated.
Article 15 of the Constitution - If there are contradictions between CCP and

universally recognized principles and norms of international law and international
treaties of Russian Federation, the latter are applied.
Presumption of innocence
Article 49 of the Constitution of the Russian Federation guarantees the

presumption of innocent. Everyone accused of committing a crime is considered
innocent until his guilt is proved according to the rules fixed by the federal law and
confirmed by the sentence of a court which has come into legal force. Furthermore,
the accused is not obliged to prove his innocence and irremovable doubts about the
guilt of a person are interpreted in favor of the accused.
Article 14 of CCP adds that the burden of proving the charge and of refuting the
arguments cited in defense of the suspect or of the accused, is on the prosecution.
Standards of proof and standards for conviction
Article 75 of the CCP - the proof, obtained with a violation of the demands of the
CCP, is qualified as inadmissible. Inadmissible proof are deprived of legal force and
cannot serve as a basis for the accusation or be used for proving any one of the
circumstances subject to proving.
Article 14 of the CCP - the verdict of guilty cannot be based on suppositions.
Article 5 of the Criminal Code (CC) contains the principle of guilt - a person is to
be brought to criminal responsibility only when his guilt has been established.
According to article 24 of the CC, there are two forms of guilt intent and
negligence. An act committed negligently is recognized as a crime only in cases
where this is specially provided for by the relevant article of the special part of the
code.
Article 25 of the CC - clear intent: the person realized the social danger of his
actions (inaction), foresaw the possibility or the inevitability of the consequences,
and willed such consequences to ensue. Indirect intent: the person realized the
social danger of his actions (inaction), foresaw the possibility of consequences, did
not wish, but consciously allowed these consequences.
Article 26 of the CC thoughtlessness: the person foresaw the possibility of the

consequences of his actions (inaction), but expected without valid reasons that
these consequences would be prevented. Carelessness: the person did not foresee
the possibility of the consequences of his actions (inaction), although he could and
should have foreseen these consequences.
Right to compulsory process
Articles 47, 53 of CCP - accused and his defense council have the right to
present evidences and make a motions, including the calling a witness to the court.
Article 231 of CCP in preparation for the trial the judge decide a question of
calling people on the list submitted by the parties.
Article 271 of CCP - the court may not dismiss the motion to interrogate as a
witness the person came to the court on the initiative of the parties.
Article 56 of CCP a witness may not default when summoned by investigator,

prosecutor or the court.
Article 253 of CCP measures for subpoena and bringing those who failed to
appear in the court.
Right to confront witnesses
Article 278 of CCP the party, at whose request a witness had summoned to
trial, ask question the first. The judge asks questions after his interrogation by the
parties.
Right to counsel
Article 248 of CCP - the defendant's defense counsel takes part in the study of
the proof and file petitions and express his opinion to the court on the merit of the
accusation and on its proving, on the circumstances mitigating the defendant's
punishment or acquitting him, on the measure of the punishment and also on the
other questions, arising in the course of the judicial proceedings.
If the counsel for the defense fails to come and it is impossible to replace him, the
judicial proceedings is postponed. If the counsel for the defense is replaced, the court
gives time for the counsel for the defense who has joined the criminal case proceedings
anew, to get acquainted with the criminal case materials and to prepare for the
participation in the judicial proceedings. At the request of the counsel for the defense,
the court may repeat the interrogations of the witnesses, of the victims and of the
experts, or the other judicial actions.
Right to a fair trial
Neither Constitution nor Code of Criminal Procedure states this right, however, there are
some provisions that ensure the right.
Article 19 of the Constitution - all people shall be equal before the law and court.
Article 46 of the Constitution guarantee judicial protection of freedoms and

rights, the right to appeal to international bodies.
Article 47 of the Constitution - the right for the competent court and judge.
Article 49 of the Constitution - the presumption of innocence, alongside with

irremovable doubts about the guilt of a person shall be interpreted in favor of the
accused.
Article 241 of the CCP - the judicial proceedings on criminal cases in all the
courts are open, with the exception of the cases pointed out in the code.
Right to notice of charges
Article 172 of CCP - A charge is brought against a person not later than three
days from the day of passing the resolution in the presence of his counsel of the
defense, if the latter is taking part in the criminal case.
The defendant has the right to ask for council for the defense from the moment of
accusation. She/he may also file a motion for guaranteeing the participation of a
counsel for the defense by the investigator.
If the accused refuses to sign the resolution, the investigator notes it. The investigator
hands in to the accused and to his counsel for the defense a copy of the resolution on
taking the given person to the bar in the capacity of defendant.
Right to non self-incrimination
Article 77 of the CCP - admission by the accused of his guilt in committing the
crime can serve as the foundation for the charge only if his guilt is confirmed by the
aggregate of the proof, existing on the criminal case.
See more in the section Right to silence.

Right to a speedy trial
No.
Right to trial by jury
Article 47 of the Constitution - the accused of committing a felony has the right to
the examination of his case by a court of jury.
Section 12 of CCP contains specifics of the proceedings in a court with the

participation of jury.
Right to impartial judge
Article 120 of the Constitution - judges are independent and submit only to the
Constitution and the federal law.
Article 5 of the federal constitutional law On the judiciary in the Russian

Federation - the right to impartial judge.
Article 61 of the CCP - the provision about the circumstances precluding the
participation in proceedings in a criminal case.
The right to file a motion includes the motion for judge recusation.
Article 65 of the CCP - The recusation filed against the judge examining the
criminal case on his own, or the petition of the application of the measure of
restriction or of the performance of investigative actions, or the complaint against the
resolution on the refusal to institute a criminal case or to terminate it, shall be
resolved by the same judge.
Sentencing
Capital punishment
Article 20 of the Constitution - capital punishment until its complete elimination

may be envisaged by a federal law as an exclusive penalty for especially grave
crimes against life, and the accused shall be granted the right to have his case
examined by jury trial.
Article 49 of Criminal Code of the Russian Federation includes the provision that
capital punishment, as an exclusive penalty, may be imposed only for especially
grave crimes encroaching on human life. Capital punishment shall not be applied to
women, nor to persons who have committed offences at below 18 years of age, nor
and to men who have reached 65 years of age by the time of adjudication.
April 16, 1996 Russia signed the protocol number 6 to the European Convention on
Human Rights and Fundamental Freedoms concerning the abolition of the death
penalty. February 2, 1999 Russian Constitutional Court passed Resolution 3-P, which
declared unconstitutional the possibility of the death penalty in the absence of jury trials
in all regions of the country. On January 1, 2010 jury trials were to begin to act in the
latter the subject of the federation, where they still were not - in the Chechen Republic.
In this regard, the Supreme Court inquired about the possibility of the death penalty
from that point to the Constitutional Court. November 19, 2009 the Russian
Constitutional Court acknowledged the impossibility of the death penalty in connection
with its obligations under the protocol number 6.
Ex-post facto punishment
Article 54 of the Constitution - no one may bear responsibility for the action which
was not regarded as a crime when it was committed.
Freedom from cruel or unusual punishment
Article 7 of Criminal Code of the RF - Punishment and other legal measures

applicable to a person who has committed a crime may not pursue the aim of
causing physical suffering or debasement of human dignity.
Article 21 of the Constitution - no one shall be subject to torture, violence or other

severe or humiliating treatment or punishment.
Freedom from torture
Article 21 of the Constitution - no one shall be subject to torture, violence or other

severe or humiliating treatment or punishment.
A person who is under investigation in the criminal case, file a complaint on the use of
torture. The complaint is checked by the investigator. Investigator on the basis of the
results of preliminary verification institutes criminal proceedings or refuses to initiate
criminal proceedings.
Article 148 of CCP - The refusal may be appealed in court. If the court found the
refusal reasonable the court makes an appropriate decision. In these cases, the
applicant may appeal to a higher court.
See more about bringing witnesses at section Right to compulsory process and about
evidences section Exclusionary Rule.
Right to appeal
Article 46 of the Constitution guarantees the right to appeal, according to

international treaties of the Russian Federation, to international bodies for the
protection of human rights and freedoms, if all the existing internal state means of
legal protection have been exhausted.
Article 50 of the Constitution - everyone convicted for a crime have the right to
appeal to the superior court, as well as to ask for pardon or a mitigation of
punishment.
Right not to be fined excessively
Article 46 of the Criminal Code - the amount of a fine is determined by a court

depending on the gravity of the crime and the property status of the convicted
person and his family, as well as on the convicted person's ability to receive a wage
or any other income. With regard for the same circumstances a court may impose a
fine payable in installments for a term of up to three years.
Rights in prison
Conditions of confinement
The conditions of confinement depend on the type of correctional facilities, regime there
and conditions.
Article 82 of the Penal Code the principle of the separation of different

categories of convicts.
Article 87 of the Penal Code - within a single colony sentenced to imprisonment

may be a conventional, lightweight, and strict conditions of confinement.
Immigrant detention
Articles 46, 47 of CCP - suspects and accused have the right to give the
evidence and the explanations in his native tongue or in the language, of which he
has a good command; to make use of an interpreter's services free of charge.
Right to medical care in prison
Article 12 of the Penal Code - convicted have the right to health, including the
receipt of primary care and specialist care as an outpatient or inpatient setting.
Health care facilities (hospitals, specialized psychiatric and tuberculosis hospitals)
and medical units in the penal system are organized. Administration of correctional
facilities is responsible for fulfilling sanitary and epidemic control requirements to
ensure the health of convicts. In more details the right to medical care can be find in
house rules of prisons.
Mental health care
Article 12 of Penal Code provides alongside with the right to medical care the
right to mental health care. Convicted have the right to psychological assistance
provided by the employees of the prison psychological services and other persons
entitled to such assistance. Participation of prisoners in activities related to the
provision of psychological care is carried out only with their consent.
Restriction of rights
To obtain legal assistance to convicts on their applications granted meetings with
attorneys and other persons entitled to legal aid. Visits are provided in private, out of
earshot of third parties, without the use of technical means of listening. The number of
visits is not limited, they are held up to 4 hours in the off hours for the convicted, and
only during the hours from the time of getting up to lights-out.
Women's rights in prison
Article 9 of the Constitution - man and woman enjoy equal rights and freedoms
and have equal possibilities to exercise them.
Article 177 of the Penal Code to the convicted pregnant women, women with
young children, serving a sentence in a penal colony, a court may grant a deferment
sentence until the child reaches the age of fourteen.
Article 80 of the Penal Code the separation of convicted men and women is
established in correctional facilities.
Article 100 of House rules of prisons - childrens home may be organized for
women with children. The necessary conditions for normal life and development of
children are provided in children's homes. Convicted women may place children
under three years old in the orphanage of correctional facilities, to communicate with
them in their spare time without any restrictions. They may be allowed to live
together with their children.
Supervision and searches of convicted women are conducted by female staff.

Ways to protects rights
Motions
Article 119 of the CCP the defendant, his council for defense have the right to
file a motion for the performance of the procedural actions (ask for examination, call
for witness, bring witness to the court) or for passing the procedural decisions
(exclude evidence from the list, recusation of the judge, expert). It is the first remedy
to protect and means of realization of defendants rights.
Exclusionary Rule or Nullity of Procedure
Article 75 of the criminal procedure Code - the proof, obtained with a violation of
the demands of the CCP, is qualified as inadmissible. Inadmissible proof are
deprived of legal force and cannot serve as a basis for the accusation or be used for
proving any one of the circumstances subject to proving.
Article 235 of the Criminal Procedure Code - the parties are entitled to file a
petition for delisting any evidence presented at trial.
Civil Action
Article 44 of the CCP - the notion of civil plaintiff. There must be an official order
to recognize a person as the civil claimant. The civil claimant may file a civil claim for
the material compensation of the moral damage, alongside of the material. A civil
claim may be presented after the institution of criminal proceedings and up to the
end of the investigation in court of the first instance.
Article 230 of the CCP the right to ask to take action to ensure compensation
for the harm caused by crime or possible confiscation of property.
Police Procedures
Complaint/information
Article 141 of the CCP - A report on a crime may be made either verbal or in
writing. A written report on a crime is signed by the applicant. A verbal report on a
crime is entered into the protocol, which is signed by the applicant and by the
person who has accepted the given report. The applicant is warned about the
criminal liability for a deliberately false denunciation. An anonymous report on the
crime cannot serve as a reason for the institution of a criminal case.
Article 144 of the CCP - the inquirer, inquiry body, investigator must check the
information of any offense committed or imminent crime and within the competence
to take action on it no later than three days after the receipt of the information.
Refusal to accept reports of crime may be appealed to the prosecutor or the court.
Arrest, search and seizure laws

Stops and Frisks
Article 13 of the law On the police - the police has a right to carry out personal
searches of citizens, the inspection of the premises of things with them, as well as
inspection of their vehicles when there is evidence that these citizens have a
weapon, explosive devices, drugs, psychotropic substances.
Arrests
The police protect everyone's right to liberty and security. Before the court's decision the
person may be not detained for more than 48 hours.
Article 14 of the law On the police provides the polices right to arrest persons
under the specific circumstances. In each case the officer must explain the person
detained his right to counsel, right to an interpreter, the right to inform relatives or
close persons of the fact of his detention, the right to refuse to give an explanation.
Pre-trial detention
Article 108 of the CCP says about taking into custody as a measure of restriction.
It is a pre-trial detention. Taking into custody is applied: a) through a court decision
towards the suspect or the accused of committing crimes for which the law
establishes b) the punishment in the form of the deprivation of freedom for a term of
over two years, c) if it is impossible to apply a different, milder measure of restriction.
For choosing a measure of restraint in the form of detention, the concrete
circumstances are to be indicated in the judge's ruling which served as the grounds
for the judge to adopt such a decision.
Article 109 of the CCP - time restrictions of pre-trial detention. Holding in custody
during the inquisition of crimes may not exceed two months. This term may be
extended by the judge for a term of up to six months. Further extension of the term
may be effected with respect to the persons, accused of committing grave and
especially grave crimes, only if the criminal case is of a particular complexity and if
there are grounds for selecting this measure of restriction, by the judge of the same
court upon application from the investigator, filed with the consent of the head of
investigative body, for up to twelve months. The term of holding in custody for over
twelve months to eighteen months may be extended only in exceptional cases. A
further extension of the said term is inadmissible. The accused, who is held in
custody, is a subject to an immediate release.
Searches
Article 182 of the CCP: making a search is allowed if there is a sufficient data to
believe that the person may keep in the place the instruments of crime, objects,
documents and valuables. The search is to be performed on the basis of an
investigator's resolution. The search in the living quarters is to be effected on the

basis of a judicial order.
Lineups and other identification procedures
No.
Interrogation
Before formal charge in court
Article 46, 47 of the CCP the right to have meetings with counsel in private and
in confidence, including before the first interrogation of the accused/suspects.
Article 94 of the CCP - Before the interrogation starts the suspect at his request
is provided with an opportunity to meet his defense counsel in private and
confidentially. Where it is necessary to commit procedural actions with the
participation of the suspect, the duration of a meeting exceeding two hours may be
limited by the inquirer, investigator and prosecutor with obligatory preliminary
notification of the suspect and his/her defense counsel on it. In any case the
duration of the meeting may not be less than 2 hours.
After defendant is formally charged
Article 173 of the CCP - the investigator interrogates the accused immediately
after the charge is brought against him. At the beginning of the interrogation, the
investigator finds out: a) whether the accused recognizes himself as being guilty, b)
whether he wishes to give evidence on the merits of the charge brought against him
and c) in what language. If the accused refuses to give evidence, the investigator
notes it in the protocol of his interrogation. A repeated interrogation of the accused
on the same charge, if he has refused to give evidence at the first interrogation, may
be conducted only at the request of the accused himself. At every interrogation of
the accused, the investigator compiles a protocol.
Enforcing the rules (procedures to protect against illegal interrogation)
Article 189 of the CCP contains general rules of conducting the interrogation.
Article 173 of the CCP - at each interrogation of the accused investigator writes a
protocol.
If these requirements are not met, the evidence can be excluded, according to article 75
of the CCP (Evidence obtained in violation of the CCP, are inadmissible. Inadmissible
evidences have no validity and cannot be used as a basis for prosecution).
Right to counsel
Article 46, 47 of the CCP have meetings with counsel in private and in
confidence, including before the first interrogation of the accused/suspects.
Court Procedures
Pre-trial
Initial Court-Appearance
No.
Charging instrument
Article 171 of the CCP - if there is a sufficient proof, comprising a basis for
bringing a charge against the person for the perpetration of a crime, the investigator
passes a resolution on taking the given person to the bar in the capacity of the
defendant.
Article 171 of the CCP - a charge is brought against a person not later than three
days from the day of passing the resolution on taking him to the bar in the presence
of the defendant, of his counsel, if the latter is taking part in the criminal case.
The investigator notifies the accused about the day of bringing the charge and
simultaneously explains to him his right to invite a counsel for the defense on his own or
to file a petition for guaranteeing the participation of a counsel for the defense by the
investigator. The accused, who is held in custody, is informed about the day when the
charge is going to be brought through the administration of the place where he is held in
custody.
The investigator, having identified the person of the accused, announces to him and to
his counsel for the defense, if the latter is taking part in the criminal case, the resolution
on taking the given person to the bar in the capacity of defendant. In this case the
investigator explains to the accused the substance of the presented charge, as well as
his rights.
If the accused or his counsel for the defense does not appear at the time fixed by the
investigator, and also if the place of location of the accused is not established, the
charge is brought on the day of the actual appearance of the accused or on the day of
his being brought forcibly on the condition that the investigator has provided for the
participation of a counsel for the defense.
The investigator hands in to the accused and to his counsel for the defense a copy of
the resolution on taking the given person to the bar in the capacity of defendant.
Preliminary hearing
Article 229 of the CCP contains the grounds for conducting a preliminary hearing.
Article 234 of the CCP - a preliminary hearing is conducted by the judge on his
own in a closed session with the participation of the parties. Upon a petition from the
accused, a preliminary hearing may be carried out in his absence. The nonappearance of the other timely notified participants in the procedure on the criminal
case is not seen as an obstacle to conducting a preliminary hearing.
Article 235 of the CCP - When considering a motion to exclude evidence,

claimed by the defense on the grounds that the evidence was obtained in violation
of the CCP, the burden of rebuttal arguments presented by the defense rests with
the prosecutor. In other cases, the burden of proof is on the party which filed a
motion.
Pre-trial motions
Article 235 of the CCP - the parties have the right to enter a motion for the
exclusion of any proof from the list of proof, presented during the judicial
proceedings. If a motion is filed, its copy is to be handed over to the other party on
the day when the petition was lodged with the court.
The judge has the right to interrogate a witness and to enclose to the criminal case the
document, mentioned in the motion.
If the basis of the exclusion of a proof is that the proof was obtained with a violation of
the demands of the CCP, the burden of refutation of the arguments rests with the public
prosecutor.
If the court has taken the decision on the exclusion of proof, the given proof loses its
legal force and cannot be laid into the foundation of the sentence or of another court
judgment, or be studied and made use of in the course of the judicial proceedings.
If the criminal case is examined by a court with the participation of jurors, the parties or
the other participants in the court session have no right to inform the jurors about the
existence of proof that has been excluded by the decision of the court. When
considering the criminal case on the merits, the court has the right, upon a motion from
a party, to once again examine the question about recognizing the excluded proof to be
admissible.
Discovery
Article 217 of the CCP - the investigator presents to the accused and to his
counsel materials of the criminal case. The demonstrative proof and any enclosures
to the protocols of the investigative actions also are to be submitted for
acquaintance.
The accused and his counsel cannot be restricted in the time necessary for
familiarization with the materials of the criminal case. If the accused held in custody and
his/her counsel clearly temporize the familiarization with the criminal case materials,
then on the basis of the judicial decision a definite term for familiarization with the
materials is to be fixed. If the accused and his/her counsel have not familiarized
themselves with the materials of the criminal case within the time period fixed by the
court without sound reasons for doing so, the investigator is entitled to decide on
termination of the given procedural action.
Then the accused and his counsel decide what kind of motions they are going to file.
For example, what witnesses, experts and specialists are to be summoned to the court
session for an interrogation and for the confirmation of the position of the party of the
defense.
Trial
Nature of the trial
Article 123 of the Constitution - court addressed the constitutional provision on

the implementation of the legal proceeding on the basis of competition and equality
of parties is extended to all stages of criminal proceedings.
Article 15 of the CCP - specifically dedicated to the consolidation of the

normative principle of the adversarial.
The construction of Article 15 of the CCP is quite successfully reflects the most
important properties of these principles, namely that "criminal proceedings based on the
adversarial" (part 1), that "the prosecution and defense are equal before the court" (part
4), that court " is not be seen as a body of criminal prosecution, it does not come out
either on the side of the prosecution or on the side of the defense" but only "create the
necessary conditions for the parties to discharge their procedural duties and to " (part
3).
Chapter 35 of CCP - general conditions for the judicial proceeding: directness and
verbal nature, openness, invariability of the court composition, parties equity (articles
240, 241, 242, 244).
Most scholars attribute the Russian criminal procedure to a mixed type. Mixed process
is characterized by signs of a compound of investigative process for the preliminary
investigation (almost complete lack of transparency, limiting the possibility of the
accused to defend themselves, writing, production, etc.) and to an adversarial judicial
debate (public meetings, to ensure the defendant's right to protection, assessment
evidence of judges on their inner conviction, etc.).
Defendant
Article 47 of CCP - legal status and rights of accused.
Article 247 of CCP obligatory participation of the defendant. If the accused

failed to appear at the court, the trial is to be postponed. Trial in the absence of the
defendant may be allowed if the defendant solicits for hearing of his criminal case of
small or moderate gravity in his absence. In exceptional cases the trial of criminal
cases of grave and especially grave crimes may be held in the absence of the
defendant, which is located outside the Russian Federation and (or) refuses to
appear in court, unless that person has been prosecuted in a foreign country on the
criminal case. The participation of council for defense in this case is obligatory. The
defendant invites the defender. The defendant has the right to invite a few
defenders. In the absence of the defendants counsel for defense is appointed by
the court.
Lawyers
Article 49, 51 of the CCP the status and rights of the council for defense.
Article 248 of CCP - the defendant's defense counsel takes part in the study of
the proof and file petitions and express his opinion to the court on the merit of the
accusation and on its proving, on the circumstances mitigating the defendant's
punishment or acquitting him, on the measure of the punishment and also on the
other questions, arising in the course of the judicial proceedings.
If the counsel for the defense fails to come and it is impossible to replace him, the
judicial proceedings is postponed. If the counsel for the defense is replaced, the court
gives time for the counsel for the defense who has joined the criminal case proceedings
anew, to get acquainted with the criminal case materials and to prepare for the
participation in the judicial proceedings. At the request of the counsel for the defense,
the court may repeat the interrogations of the witnesses, of the victims and of the
experts, or the other judicial actions.
Expert witnesses
Russian legislation distinguishes an expert and a specialist.
Article 57 of the CCP the expert is the person, possessing special knowledge
and appointed for carrying out the court examination and for issuing the conclusion.
Article 58 the specialist is the person possessing special knowledge and invited to
take part in the procedural actions in the order for rendering assistance.
Chapter 27 of the CCP is devoted to carrying out a court examination.
Article 198 of the CCP the rights of the defendant in appointment of the court
expertise:
a) to acquaint with the resolution on the appointment of the court expertise;

b) to challenge an expert or solicits for the execution of the court expertise by other
expert agencies; c) to solicit for the appointment certain experts or the execution of the
court expertise in a particular institution;
d) to solicit for inclusion of additional question to the expert;
e) to attend the execution of the court expertise with the permission of the investigator
and to give explanations to the expert;
f) to acquaint with the expert report or with the statement that it is impossible to give an
opinion, as well as with the protocol of experts interrogation.
Article 204 of the CCP If the expert finds the circumstances that are relevant to
the criminal case, but about which no question was posed to him, he may point them
in his report.
Article 282 of the CCP - upon the parties' motion or at its own initiative, the court
has the right to summon for interrogation the expert who has issued the report in the
course of the preliminary inquisition, for him to explain or extend the report he has
given.
Judges
Article 119 of the Constitution - judges may be citizens of the Russian Federation
over 25 years of age with a higher education in law and a law service record of not
less than five years. The federal law may introduce additional requirements for
judges of the courts of the Russian Federation.
The law On the status of judges contains requirements before a judge, order to
empower, some principles, responsibility and termination of the power.
Chapter V of the CCP contains provision about the court, its legal powers, composition
and jurisdiction.
Victims
Article 42 of the CCP - the victim is a natural person, upon whom physical,
property or moral damage was inflicted by the crime, as well as a legal entity, if his
property and business reputation were damaged by the crime. The decision on
recognizing a person to be a victim is to be formalized by the resolution of the
inquirer, investigator or prosecutor, or of the court.
Sentencing
Chapter 39 of the CCP.
Article 299 of the CCP contains questions resolved by the court in passing the
sentence. The main one among them are whether it is proved that the action, the
perpetration of which is incriminated to the defendant, has actually taken place;
whether it is proved that the action was committed by the defendant; whether this
action is a crime; whether the defendant is guilty of committing this crime; whether
the defendant is subject to a punishment for the crime he has committed; whether
the circumstances, mitigating or aggravating the punishment exist; what punishment
is to be meted out to the defendant; whether the grounds for an adjudgement of a
sentence without prescribing a punishment or for a relief from the punishment exist.
Appeals
Section 13. Article 354 of the CCP - The judicial decisions, which have not come
into legal force, may be appealed against. A complaint against the sentence of the
first instance court may be filed by the parties in the course of ten days from the day
of the proclamation of the sentence, and the convicts held in custody - within the
same term from the day of handing in to them a copy of the sentence.
Article 359 of the CCP filing a complaint suspends the execution of the
sentence.
Article 360 of the CCP - The court examining a criminal case checks the legality,
the validity and the justness of the sentence and of another judicial decision in the
part in which it is appealed against. Considering a criminal case on appeal the court
may mitigate the punishment, but may not enhance punishment, as well as to apply
the criminal law on a more serious crime.
The convict and his counsel for the defense, as well as the public prosecutor have the
right to file a motion on revising the court sentence, ruling or resolution, which have
come into legal force.
Right to counsel
Article 354 of the CCP - The right to appeal against a court decision belongs to
the convicted and to the acquitted persons, to their counsels for the defense and
their legal representatives, to the public prosecutor or to the superior prosecutor, the
victim and his representative.
Ineffective assistance of counsel
No
Other grounds for appeals
Collateral remedies (habeas, etc)
QUICK FACTS
In 2012, the Russian prison population comprises 741,600 individuals, including
pre-trial detainees and remand prisoners. The prison population rate is 519 per
100,000 of national population.
Pre-trial detainees and remand prisoners represent 15.5% of the prison
population.
In 2009, the official capacity of the prison system was 949,445. So the
occupancy level rate was of 91.0%.

The Russian Federation has 1,040 establishments for incarceration, composed
of 757 corrective colonies, 230 pre-trial 'SIZO's, 7 prisons, and 46 juveniles colonies.

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Copyright 2011 International Bridges to Justice
About Criminal Defense Wiki
Singapore
English espaol
Contents
[hide]
1 ADDITIONAL RESOURCES
2 LEGAL TRAINING RESOURCE
CENTER
3 BACKGROUND
4 BRANCHES
5 THE PRESIDENT
6 SINGAPORE LEGAL
SYSTEM[7]
7 THE CRIMINAL PROCEDURE
CODE[9]
Privacy policy
8 BAIL[13]
9 FIRST COURT
APPEARANCE[14]
10 PRESIDENTIAL CLEMENCY
11 REFERENCES
ADDITIONAL RESOURCES
Constitution of Singapore
The Penal Code of Singapore
LEGAL TRAINING RESOURCE

CENTER
eLearning Courses for Criminal

Defense lawyers
BACKGROUND
Singapore is a republic with a parliamentary system of Government based on the
Westminster Model.
The roots of Singapores legal system can be traced back to the English legal system
and it has evolved over the years. The sources of law are derived from its Constitution,
legislation, subsidiary legislation (e.g. Rules and Regulations et cetera) and judge-made
law.
The Constitution[1] is the supreme law of the land and lays down the basic framework
for the three organs of state, namely:
(a) Executive
(b) Legislature
(c) Judiciary.
BRANCHES
(a) Executive
The Executive includes the Elected President, the Cabinet and the Attorney-General.
The President is elected by the people and is empowered to veto government budgets
and appointments to public office. The Cabinet comprises the Prime Minister and
Ministers appointed from among the Members of Parliament and is responsible for the
general direction and control of the Government and is accountable to Parliament. The
Attorney-General is the principal legal advisor to the government and has the power and
discretion to prosecute offenders.
Executive power rests with the Cabinet. The Cabinet is led by the Prime Minister, who is
appointed by the President. On the advice of the Prime Minister, the President appoints
other Ministers from among the Members of Parliament to form the Cabinet. The
Cabinet is responsible for all government policies and the day-to-day administration of
the affairs of state.
(i) Prime Ministers of Singapore
1959 to 1990: Mr Lee Kuan Yew

1990 to 2004: Mr Goh Chok Tong
2004 to Present: Mr Lee Hsien Loong
(b) Legislative
The Legislature comprises the President and Parliament and is the legislative authority
responsible for enacting legislation. Parliament is made up of elected, non-constituency
and nominated Members of Parliament. The Presidents assent is required for all bills
passed by Parliament and he may in his discretion withhold assent to certain bills.
The Singapore Parliament is unicameral and together with the President of Singapore,
is known as the Legislature. It is modelled after the Westminster system of
parliamentary democracy, where Members of Parliament (MPs) are voted in at regular
General Elections. In Singapore, a General Election must be held at least once every
five years. The leader of the political party that secures the majority of seats in
Parliament will be asked by the President to become the Prime Minister. MPs consist of
either Elected, Non-Constituency or Nominated members.
The present 12th Parliament of Singapore, which opened its first session on 10 October
2011, has 99 MPs, comprising 87 elected MPs, 3 Non-Constituency MPs and 9
Nominated MPs.
(c) Judiciary
The Judiciary is made up of the Supreme Court and the State Courts. The Judiciary
administers the law independently of the Executive and this independence is
safeguarded by the Constitution. The Supreme Court consists of the Court of Appeal
and the High Court. The Chief Justice, Judges of Appeal, Judicial Commissioners and
High Court Judges are appointed by the President from candidates recommended by
the Prime Minister.
Singapore practices the common law legal system, where the decisions of higher courts
constitute binding precedent upon courts of equal or lower status within their jurisdiction,
as opposed to the civil law legal system in continental Europe. The current criminal
code was preceded by the Indian Penal Code which was adopted when Singapore was
a Crown Colony.
Singapore has a comprehensive judicial system. The State Courts (previously known as
Subordinate Courts) form the first tier in the judicial hierarchy to administer justice
amongst the people. It comprises the District Courts, Magistrates' Courts, specialised
courts Family Court, Juvenile Court, Coroner's Court Small Claims Tribunals and the
Court Mediation Centre. The District Courts, Magistrates Courts and Small Claims
Tribunals can hear civil matters where disputed amounts do not exceed $250,000,
$60,000 and $10,000 respectively.
The second tier is the Supreme Court, made up of the High Court and Court of Appeal
(the highest Court in the land). Both courts hear criminal cases and civil claims
exceeding $250,000. The Chief Justice, Judges of Appeal, Judges and Judicial
Commissioners are appointed by the President on the advice of the Prime Minister.
While the judicial system has been efficient in dispensing justice, the Government has
found it necessary and expedient to complement the courts with other modes of
alternative dispute resolution (ADR), namely arbitration and mediation. Having
established itself as a major international commercial centre, Singapore has made giant
leaps to cater to the demands of business for cheaper, quicker and, at times,
confidential dispute resolution.
It has positioned itself as a competitive arbitration centre to match that of London and
Hong Kong. Major law firms in Singapore now offer arbitration services, and institutions
with state-of-the-art hearing facilities are in place to meet the arbitration needs of
disputants.
For smaller claims, mediation has been promoted as an alternative method of resolving
disputes. The State Courts via their Primary Dispute Resolution Centre and the
Singapore Mediation Centre are the two main mediation avenues. The rest are
initiatives spearheaded by the Government or industry namely Maintenance of Parents
Tribunal, Community Mediation Centre and Consumers Association of Singapore.
(a) The Supreme Court[2]
The Supreme Court is made up of the Court of Appeal and the High Court, and hears
both civil and criminal matters. Led by the Honourable the Chief Justice Sundaresh
Menon, the Supreme Court Bench consists of the Judges of Appeal, Judges and
Judicial Commissioners of the Supreme Court.
The High Court has jurisdiction to try all offences committed in Singapore and may also
try offences committed outside Singapore in certain circumstances. In criminal cases,
the High Court generally tries cases involving capital offences or cases involving
imprisonment terms that exceed 10 years. Generally, except in probate matters, a civil
case must be commenced in the High Court if the value of the claim exceeds $250,000.
Probate matters are commenced in the High Court only if the value of the deceased's
estate exceeds $3,000,000 or if the case involves the resealing of a foreign grant. In
addition, ancillary matters in family proceedings involving assets of S$1,500,000 or
more are also heard in the High Court.
Since 2002, various specialised courts like the Admiralty Court, the Intellectual Property
Court and the Arbitration Court have also been set up in the Supreme Court in response
to the increasing complexity of commercial cases reaching the judiciary. The
establishment of dedicated specialist commercial courts underscores the Supreme
Courts depth of expertise and experience in these areas, and its commitment to
position and promote Singapore as a premier centre for dispute resolution and as a
jurisdiction of choice for the resolution of both domestic and international commercial
disputes.
(b) State Courts of Singapore
The Judiciary is one of the three constitutional pillars of government along with the
Legislature and the Executive. As an Organ of State, the Judiciary's function is to
independently administer justice. The Chief Justice is the head of the Judiciary which
comprises the Supreme Court and the State Courts (originally called Subordinate
Courts).
The State Courts of Singapore include the District Courts, the Magistrates Courts, the
Specialised Courts (i.e. Family Courts, Juvenile Courts, etc.) and the Small Claims
Tribunals. As a critical component of the Judiciary, the State Courts handle more than
95% of the Judiciary's caseload.
The Chief District Judge has overall responsibility for the administration of the State
Courts. The Chief District Judge leads a team of Judicial Officers who adjudicate on
cases brought before the State Courts. He is assisted administratively by the Registrar
who is also concurrently the Deputy Chief District Judge.
THE PRESIDENT
(forms part of the Executive)
Roles and Responsibilities[3]
The President of Singapore is the Head of State.
Prior to 30 November 1991, the President was a titular Head of State with a largely
ceremonial role. On 30 November 1991, the Constitution of the Republic of Singapore
was amended to make the Presidents office an elected office with discretionary powers
relating to the safeguarding of national reserves and the appointment of key personnel
in the public sector and certain Government companies. Broadly, the roles and
responsibilities of the President can be categorised as follows:
(a) Constitutional
The powers of the Elected President are set out in the Constitution of the Republic of
Singapore and these powers largely fall into two categories - discretionary powers and
non-discretionary powers.
(b) Discretionary powers
The President has the power to veto or disagree with the Governments proposals in the
following areas:
Use of Past Reserves i.e. Reserves not accumulated by the Government during its
current term of office.
Appointment and removal of key office holders in the public service and in the statutory
boards and Government companies, which are listed in the Fifth Schedule to the
Constitution.
Changes to investment powers of the Central Provident Fund Board
Restraining Orders under the Maintenance of Religious Harmony Act (Cap. 167A)
Continued detention under the Internal Security Act (Cap. 143)
Refusal of investigations by the Corrupt Practices Investigation Bureau (CPIB)
The Presidents discretionary powers provide an important check and balance to the
Government with regard to preventing the misuse of the nations reserves and ensuring
that the public service is impartial.
The President must consult the Council of Presidential Advisers (CPA) on matters
relating to Past Reserves and the appointment and removal of key office holders (Article
21(3) of the Constitution). On other areas involving the Presidents discretionary
powers, consultation of CPA is optional (Article 21(4) of the Constitution).
If the President vetoes (i) the Governments budget (on the basis that it is likely to lead
to a draw on Past Reserves) or (ii) the appointment/removal of any key office holder,
and the Presidents decision is contrary to CPAs advice, Parliament may overrule the
Presidents decision with a two-thirds majority vote.
On other matters involving the Presidents discretionary powers, the Presidents

decision is final.
(c) Protection of Past Reserves
The President acts as the guardian of Past Reserves reserves that were accumulated
before the current term of the Government, including reserves accumulated by key
statutory boards and Government companies (SBGC) listed under the Fifth Schedule to
the Constitution.
SBGCs include GIC Pte Ltd, Temasek Holdings Pte Ltd, the Housing and Development
Board (HDB), Monetary Authority of Singapore (MAS), Central Provident Fund Board
(CPFB) and Jurong Town Corporation (JTC).
The President may exercise his discretionary power and veto any budget or specific
transaction (such as the giving of guarantees or raising of loans) of the Government or a
Fifth Schedule SBGC if, in his opinion, the proposed budget or transaction is likely to
lead to a draw on the Past Reserves.
The President does not direct the operations or the investment strategies of the
Government or the Fifth Schedule SBGCs. However, in the case of the CPF Board, the
President can veto any Bill passed by the Parliament that directly or indirectly affects
the Boards investment powers.
(d) Appointment of Key Office Holders
In the interest of ensuring the impartiality of the public sector, the President has the
discretionary power to veto the appointment or removal of
key office holders in the public service listed in Article 22 of the Constitution (such as the
Chief Justice, Judges of the Supreme Court, Attorney-General, Auditor-General,
Director of Corrupt Practices Investigation Bureau, Chairman and members of the
Public Service Commission, Chief of Defence Force and Commissioner of Police);
any chairman, board member or chief executive officer of a Fifth Schedule statutory
board (Article 22A of the Constitution); and
any director or chief executive officer of a Fifth Schedule Government company (Article
22C of the Constitution).
(e) ISA detention orders, CPIB investigations and restraining orders in relation to
maintenance of religious harmony
The continued detention of a person under the Internal Security Act (ISA) requires the
Presidents concurrence if the Government disagrees with the recommendation of the
advisory board (established under the ISA) that the person be released (Article 151(4)
of the Constitution).
Investigations by the Corrupt Practices Investigation Bureau (CPIB) may be carried on

with the Presidents concurrence under Article 22G of the Constitution notwithstanding
that the Prime Minister does not consent to such investigations.
Restraining orders made under the Maintenance of Religious Harmony Act (MRHA)
must subsequently be confirmed by the President. The President also has the power
under Article 22I of the Constitution to cancel or vary a restraining order if the advice of
the Cabinet on the matter differs from the recommendation of the Presidential Council
for Religious Harmony (established under the MRHA).
(f) Non-discretionary powers[1][2][4]
Non-discretionary powers of the President refer to matters in which the President has
no discretion and must act in accordance with the advice of the Cabinet or a Minister.
For example, the President must act in accordance with the Cabinet's advice regarding
the pardon of a person convicted of an offence. The President must also act in
accordance with the Prime Minister's advice on the appointment of Ministers.
(g) Ceremonial
As the Ceremonial Head of State, the President is the symbolic figure representing
Singapore at ceremonies and internationally.
(h) Foreign Relations
All foreign ambassadors-designate and high commissioners-designate will present their

credentials to the President before assuming office in Singapore. The President also
presents letters of credence to ambassadors-designate and high commissionersdesignate of Singapore before they leave to assume office overseas.
The President promotes friendship and economic ties between Singapore and other
countries by hosting and engaging visiting dignitaries and making State Visits overseas.
A meeting between countries at the Head of State level is the highest form of a
diplomatic exchange. Such exchanges promote international and bilateral trade and
investments, and cooperation in various areas such as defence, education, research
and development, and arts and culture, to open doors to opportunities around the world
that Singaporeans can tap on.
(i) Officiating at State Events & Conferment of National Awards
As the highest office of the land, the Presidency is vested with several ceremonial
functions. Each Parliament session is opened by the President who will deliver a
Presidential address laying out the key challenges for each term of government. The
President officiates at swearing-in ceremonies of key appointment-holders such as the
Prime Minister, Cabinet Ministers, the Chief Justice and Judges of the Supreme Court.
The annual National Day Parade is officiated by the President. The President also
confers awards, such as the National Day Awards, on the advice of the Cabinet.
(j) Community[5]
The President may use the influence of his position to support charitable and social
causes, such as sports, volunteerism, social entrepreneurship, culture and the arts. The
President's Challenge championed by the President is one such example. The
President is often invited to grace events organised by grassroots, community and
welfare groups, ethnic and religious celebrations and social activities.
The Istana is open to the public on national festivities such as the Chinese New Year,
Hari Raya Puasa, Deepavali, Labour Day and National Day. President will interact with
members of the public during these open houses.
(k) Awards
The President lends his name to awards in recognition of excellence achieved in
various fields, which are of importance to our nation and society and to encourage the
development of our youths.
(l) Presidential office
Council of Presidential Advisors

The Constitution of Singapore was amended in 1991 to give the Elected President
custodial and discretionary powers to safeguard the reserves of the Government, which
were not accumulated by the Government during its current term of office. The
Constitutional amendments, which came into effect on 30 November 1991, also
provided for a Council of Presidential Advisers (CPA) to advise the President in the
exercise of his custodial and discretionary powers. It is obligatory for the President to
consult the Council before he vetoes the budgets of the Government and key
government-linked bodies and the appointments of government nominees to key posts.
The Council comprises six members and two alternate members. Two members are
appointed by the President at his discretion; two are the Prime Minister's nominees; one
is the Chief Justice's nominee; and one is the nominee of the Chairman of the Public
Service Commission. One alternate member is appointed by the President at his
discretion while the other is appointed by the President on the advice of the Prime
Minister, in consultation with the Chief Justice and Chairman of Public Service
Commission.
Members are appointed on a six-year term on their first appointment. They are eligible
for re-appointment for further terms of four years each. Alternate members are
appointed on a four-year term. The present Chairman of the CPA is Mr J Y Pillay. The
other members are Mr S Dhanabalan, Mr Po'ad Bin Shaik Abu Bakar Mattar, Mr Goh
Joon Seng, Mr Bobby Chin Yoke Choong and Mr Lee Tzu Yang. The two alternate
members are Mr Lim Chee Onn and Mr Stephen Lee Ching Yen. As Chairman of the
Council of Presidential Advisers, Mr Pillay exercises the functions of the office of the
President in the absence of the President. If he is unavailable, this duty then falls on the
Speaker of Parliament.
(i) Role of the CPA
The CPA advises the President in the exercise of his discretionary veto powers. The
President must consult the CPA in the exercise of any of his discretionary powers in
connection with appointments and the reserves. It is optional for the President to consult
the CPA as regards other areas where he has discretionary powers. CPA proceedings
are private. The CPA may ask public officers to furnish information. Should any public
officer appear before the CPA, the officer is prohibited by the Constitution from
disclosing his discussions before the CPA with anyone else.
(ii) Members of Council of Presidential Advisers
Chairman Mr J Y Pillay
Member Mr S Dhanabalan
Member Mr Po'ad Bin Shaik Abu Bakar Mattar
Member Mr Goh Joon Seng
Member Mr Bobby Chin Yoke Choong
Member Mr Lee Tzu Yang
Alternate Member Mr Lim Chee Onn
Alternate Member Mr Stephen Lee Ching Yen
(iii) Other Presidential Councils
Presidential Council for Minority Rights
The Presidential Council for Minority Rights has its origins in 1970 when it was
established as the Presidential Council under the Constitution. In 1973, the Council was
renamed to its present name.
The Council examines all legislation to ensure that they are not disadvantageous to any
racial or religious community as compared to other such communities. Its report on such
legislation is presented to Parliament. In addition, the Council also considers matters
affecting any racial or religious community that are referred to it by Parliament or the
Government.
In its advisory capacity, the Council advises the President on nominations of appointees
to the Presidential Council for Religious Harmony (under the Maintenance of Religious
Harmony Act), the Malay Community Committee, and the Indian and Other Minorities
Communities Committee (under the Parliamentary Elections Act).
Members of the Council are appointed by the President on the advice of the Cabinet.
Currently, the Council has 16 Members comprising the Chairman, six permanent
Members and nine other Members, as follows:
Chairman:
The Honourable the Chief Justice Sundaresh Menon
Permanent Members:
Tuan Haji Othman bin Wok

Mr Goh Chok Tong, Emeritus Senior Minister
Mr S Dhanabalan
Mr Lee Hsien Loong, Prime Minister
Mr K Shanmugam, Minister for Foreign Affairs and Minister for Law
Other Members:
Mr VK Rajah, Attorney-General
Mr J Y Pillay
His Grace Archbishop William Goh Seng Chye
Mr Othman Haron Eusofe
Mr Timothy James de Souza
Mr Abdullah Tarmugi
Prof Chan Heng Chee

Mr Barry Desker
Mr Philip Jeyaretnam
Mr Surjit Singh s/o Wazir Singh
Shaikh Syed Isa bin Mohamed Semait
Venerable Sik Kwang Sheng
(iv) Presidential Council for Religious Harmony
The Presidential Council for Religious Harmony is set up under the Maintenance of
Religious Harmony Act (MRHA). The Chairman and members are appointed by the
President of the Republic of Singapore. The Council gives its advice to the Minister for
Home Affairs on matters affecting the maintenance of religious harmony in Singapore
which are referred to it by the Minister or by Parliament, and considers and makes
recommendations to the President on restraining orders issued under the Act. The
Council can number from six to fifteen members, excluding the Chairman. The Council
serves a three-year term.
The Chairman and members of the Council are:
Chairman:
Mr Goh Joon Seng
Members:
Venerable Seck Kwang Phing (Buddhist Representative)
His Grace Archbishop William Goh (Roman Catholic Representative)

Mr Rajendran s/o Sinnathamby (Hindu Representative)
Mufti Dr Mohamed Fatris Bakaram (Muslim Representative)
Mr Lim Khay Tham (Protestant Christian Representative)
Mr Surjit Singh s/o Wazir Singh (Sikh Representative)
Associate Professor Lee Cheuk Yin (Taoist Representative)
Mr Wee Heng Tin (Layperson)
Ms Lai Siu Chiu (Layperson)
(v) Aides-de-Camp
The term "Aide-de-Camp' is of French origin, meaning 'camp or field assistant'. The
ADC was originally a military assistant in the field to a Sovereign, Chief of State, or
General. They transmitted orders and supervised operations in the name of their
commander, and even exercised delegated authority on occasions. In modern day, the
ADC is an officer of the armed forces who serves as a personal assistant to the
President, Head of State, General, Admiral, or other high-ranking commanders.
Compared to the military importance and tasks of ADCs in 19th Century armies, the role
of ADCs today have changed to become mainly those of rendering personal assistance
and acting as confidential secretaries to their commanders.
In some countries, the ADC to the sovereign or Head of State is an honorary position. In
others, ADCs have more detailed and important duties. In most countries, the tour of
duty of an ADC is between two and four years, and it is usually required that an ADC
appointee has served several years with troops previously. Currently, the President of
the Republic of Singapore has three full-time ADCs. The full-time ADCs are assisted by
a corps of Honorary ADCs from the Singapore Armed Forces, the Singapore Police
Force and the Singapore Civil Defence Force at major events.
The full-time ADCs to the President attend to the general administration, security and
social needs of the President, and accompany him whenever he attends, presides, or is
involved in State functions, gatherings, ceremonies or occasions of ceremonial or
charitable/social nature. They are responsible for the co-ordination, planning, execution
and follow-up of all of Presidents events, both locally and for overseas visits. Honorary
ADCs assist the full-time ADCs in the discharge of their duties to the President. They
help in areas such as receiving guests and serving as liaison officers for VIPs or as
emcees at official events, to ensure the smooth running of these functions.
(vi) The Aiguillette
Internationally, Aides-de-Camp may be identified by the thick distinctive cords worn

across their right shoulder, called aiguillettes. The aiguillettes are plaited cords ending at
two points called aglets. Historically, the aglets were used by knights to fasten the plates
of their armour together. Aiguillettes are worn on the right shoulder by officers of certain
appointments only. They include:
Chief of Defence Force in the Singapore Armed Forces

Commissioner of Police in the Singapore Police Force
Commissioner in the Singapore Civil Defence Force
Aides-de-Camp to the President
Honorary Aides-de-Camp to the President
In Singapore, ADCs from the Singapore Armed Forces and the Singapore Civil Defence
Force wear gold aiguillettes, while those from the Singapore Police Force wear silver
aiguillettes.
(vii) Civil List
The Civil List provides the funds to maintain the Presidents Office, including salaries of
the President and his personal staff, and operational expenditures, such as the costs of
running events and functions. The Civil List of the President of the Republic of
Singapore, which is provided for under the Constitution (Article 22J) to enable the
President to perform his functions, shall not be diminished during the continuance in
office of the President.
(viii) Presidents of Singapore[6]
1965 to 1970: Mr Yusof bin Ishak

1971 to 1981: Mr Benjamin Sheares
1981 to 1985: Mr Devan Nair
1985 to 1993: Mr Wee Kim Wee
1993 to 1999: Mr Ong Teng Cheong
1999 to 2011: Mr S R Nathan
2011 to Present: Dr Tony Tan Keng Yam
SINGAPORE LEGAL SYSTEM[7]

(Criminal)
Although Singapores legal system has its root in the common law, the criminal law of
Singapore is largely statutory in nature. The general principles of criminal law, as well as
the elements and penalties of common criminal offences such as homicide, theft and
cheating, are set out in the Penal Code.
Penal Code[3][8]
REVISED EDITION 2008 30TH NOVEMBER 2008
(CHAPTER 224)
(Original Enactment: Ordinance 4 of 1871)

(numerals being the section number)
1. Short title
2. Punishment of offences committed within Singapore
3. Punishment of offences committed beyond, but which by law may be tried within
Singapore
4. Jurisdiction over public servants for offences committed outside Singapore
5. Certain laws not to be affected by this Code
Chapter II
GENERAL EXPLANATIONS
6. Definitions in this Code to be understood subject to exceptions
7. Expression once explained is used in the same sense throughout this Code
8. "Gender"
9. "Number"
10. "Man" and "woman"
11. "Person"
12. "Public"
17. Government
19. Judge
20. Court of justice
21. Public servant
22. Movable property
23. Wrongful gain and wrongful loss
24. Dishonesty
25. Fraudulent
26. Reason to believe
27. Property in possession of spouse, clerk or servant
28. Counterfeit
29. Document
29A. Writing
29B. Electronic Record
30. Valuable security
31. A will
31A. Die and instrument
32. Words referring to acts include illegal omissions
33. Act and omission
34. Each of several persons liable for an act done by all, in like manner as if done by
him alone
35. When such an act is criminal by reason of its being done with a criminal knowledge
or intention
36. Effect caused partly by act and partly by omission
37. Co-operation by doing one of several acts constituting an offence
38. Several persons engaged in the commission of a criminal act may be guilty of
different offences
39. "Voluntarily"
40. "Offence"
41. Offence with specified term of imprisonment
42. "Obscene"
43. "Illegal", "unlawful" and "legally bound to do"
44. "Injury"
45. "Life"
46. "Death"
47. "Animal"
48. Vessel
49. Year and month
50. Section
51. Oath
52. Good faith
CHAPTER III
PUNISHMENTS
53. Punishments
54. Imprisonment for life
57. [Repealed]
71. [Repealed]
72. Punishment of a person found guilty of one of several offences, the judgment stating
that it is doubtful of which
73. Enhanced penalties for offences against domestic maids
74. Enhanced penalties for racially or religiously aggravated offences
75. Punishment of persons convicted, after a previous conviction, of an offence

punishable with 3 years imprisonment
CHAPTER IV
GENERAL EXCEPTIONS
76. Act done by a person bound, or by mistake of fact believing himself bound by law
77. Act of judge when acting judicially
78. Act done pursuant to the judgment or order of a court of justice
79. Act done by a person justified, or by mistake of fact believing himself justified by law
80. Accident in the doing of a lawful act
81. Act likely to cause harm but done without a criminal intent, and to prevent other
harm
82. Act of a child under 7 years of age
83. Act of a child above 7 and under 12 years of age, who has not sufficient maturity of
understanding
84. Act of a person of unsound mind
85. Intoxication when a defence
86. Effect of defence of intoxication when established
87. Act not intended and not known to be likely to cause death or grievous hurt, done by
consent
88. Act not intended to cause death done by consent in good faith for the benefit of a
person
89. Act done in good faith for the benefit of a child or person of unsound mind, by or by
consent of guardian
90. Consent given under fear or misconception, by person of unsound mind, etc., and
by child
91. Acts which are offences independently of harm caused to the person consenting,
are not within the exceptions in sections 87, 88 and 89
92. Act done in good faith for the benefit of a person without consent
93. Communication made in good faith
94. Act to which a person is compelled by threats
95. Act causing slight harm
Right of private defence
96. Nothing done in private defence is an offence
97. Right of private defence of the body and of property
98. Right of private defence against the act of a person of unsound mind, etc.
99. Acts against which there is no right of private defence
100. When the right of private defence of the body extends to causing death
101. When such right extends to causing any harm other than death
102. Commencement and continuance of the right of private defence of the body
103. When the right of private defence of property extends to causing death
104. When such right extends to causing any harm other than death
105. Commencement and continuance of the right of private defence of property
106. Right of private defence against a deadly assault when there is risk of harm to an
innocent person
CHAPTER V
ABETMENT
107. Abetment of the doing of a thing
108. Abettor
108A. Abetment in Singapore of an offence outside Singapore
108B. Abetment outside Singapore of an offence in Singapore
109. Punishment of abetment if the act abetted is committed in consequence, and

where no express provision is made for its punishment
110. Punishment of abetment if the person abetted does the act with a different intention
from that of the abettor
111. Liability of abettor when one act is abetted and a different act is done
112. Abettor, when liable to cumulative punishment for act abetted and for act done
113. Liability of abettor for an offence caused by the act abetted different from that
intended by the abettor
114. Abettor present when offence committed
115. Abetment of an offence punishable with death or imprisonment for life
116. Abetment of an offence punishable with imprisonment
117. Abetting the commission of an offence by the public or by more than 10 persons
118. Concealing a design to commit an offence punishable with death or imprisonment

for life
119. A public servant concealing a design to commit an offence which it is his duty to
prevent
120. Concealing a design to commit an offence punishable with imprisonment
CHAPTER VA
CRIMINAL CONSPIRACY
120A. Definition of criminal conspiracy
120B. Punishment of criminal conspiracy
CHAPTER VI
OFFENCES AGAINST THE STATE
121. Waging or attempting to wage war or abetting the waging of war against the
Government
121A. Offences against the Presidents person
121B. Offences against authority
121C. Abetting offences under section 121A or 121B
121D. Intentional omission to give information of offences against section 121, 121A,
121B or 121C by a person bound to inform
122. Collecting arms, etc., with the intention of waging war against the Government
123. Concealing with intent to facilitate a design to wage war
124. Assaulting President, etc., with intent to compel or restrain the exercise of any
lawful power
125. Waging war against any power in alliance or at peace with Singapore
126. Committing depredation on the territories of any power in alliance or at peace with
Singapore
127. Receiving property taken by war or depredation mentioned in sections 125 and
126
128. Public servant voluntarily allowing prisoner of State or war in his custody to escape
129. Public servant negligently suffering prisoner of State or war in his custody to
escape
130. Aiding escape of, rescuing, or harbouring such prisoner
130A. Harbour
CHAPTER VIA
PIRACY
130B. Piracy by law of nations. Cf. 12 and 13 Victoria c. 96 (Admiralty Offences

(Colonial) Act 1849)
130C. Piratical acts
CHAPTER VIB
GENOCIDE
130D. Genocide
130E. Punishment for genocide
CHAPTER VII
OFFENCES RELATING TO ARMED FORCES
131. Abetting mutiny, or attempting to seduce an officer or a serviceman from his duty
132. Abetment of mutiny, if mutiny is committed in consequence thereof
133. Abetment of an assault by an officer or a serviceman on his superior officer, when

in the execution of his office
134. Abetment of such assault, if the assault is committed
135. Abetment of the desertion of an officer or a serviceman
136. Harbouring a deserter
137. Deserter concealed on board merchant vessel through negligence of master
138. Abetment of act of insubordination by an officer or a serviceman
139. Saving
140. Wearing the dress of a serviceman
140A. Harbour
140B. Application of Chapter VII to Singapore Police Force
CHAPTER VIII
OFFENCES RELATING TO UNLAWFUL ASSEMBLY
141. Unlawful assembly
142. Being a member of an unlawful assembly
143. Punishment
144. Joining an unlawful assembly armed with any deadly weapon
145. Joining or continuing in an unlawful assembly, knowing that it has been

commanded to disperse
146. Force used by one member in prosecution of common object
147. Punishment for rioting
148. Rioting, armed with a deadly weapon
149. Every member of an unlawful assembly to be deemed guilty of any offence

committed in prosecution of common object
150. Hiring, or conniving at hiring, of persons to join an unlawful assembly
151. Knowingly joining or continuing in any assembly of 5 or more persons after it has
been commanded to disperse
151A. [Repealed]
152. Assaulting or obstructing public servant when suppressing riot, etc.
153. Wantonly giving provocation, with intent to cause riot
154. Owner or occupier of land on which an unlawful assembly is held
155. Liability of person for whose benefit a riot is committed
156. Liability of agent of owner or occupier for whose benefit a riot is committed
157. Harbouring persons hired for an unlawful assembly
158. Being hired to take part in an unlawful assembly or riot
159. [Repealed]
160. [Repealed]
CHAPTER IX
OFFENCES BY OR RELATING TO PUBLIC SERVANTS
161. Public servant taking a gratification, other than legal remuneration, in respect of an
official act
162. Taking a gratification in order, by corrupt or illegal means, to influence a public

servant
163. Taking a gratification, for the exercise of personal influence with a public servant
164. Punishment for abetment by public servant of the offences above defined
165. Public servant obtaining any valuable thing, without consideration, from person
concerned in any proceeding or business transacted by such public servant
166. Public servant disobeying a direction of the law, with intent to cause injury to any
person
167. Public servant framing an incorrect document or electronic record with intent to
cause injury
168. Public servant unlawfully engaging in trade
169. Public servant unlawfully buying or bidding for property
170. Personating a public servant
171. Wearing garb or carrying token used by public servant, with fraudulent intent
CHAPTER X
CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS
172. Absconding to avoid arrest on warrant or service of summons, etc., proceeding

from a public servant
173. Preventing service of summons, etc., or preventing publication thereof
174. Failure to attend in obedience to an order from a public servant
175. Omission to produce a document or an electronic record to a public servant by a

person legally bound to produce such document or electronic record
176. Omission to give notice or information to a public servant by a person legally

bound to give such notice or information
177. Furnishing false information
178. Refusing oath when duly required to take oath by a public servant
179. Refusing to answer a public servant authorised to question
180. Refusing to sign statement
181. False statement on oath to public servant or person authorised to administer an

oath
182. False information, with intent to cause a public servant to use his lawful power to
the injury of another person
183. Resistance to the taking of property by the lawful authority of a public servant
184. Obstructing sale of property offered for sale by authority of a public servant
185. Illegal purchase or bid for property offered for sale by authority of a public servant
186. Obstructing public servant in discharge of his public functions
187. Omission to assist public servant when bound by law to give assistance
188. Disobedience to an order duly promulgated by a public servant
189. Threat of injury to a public servant
190. Threat of injury to induce any person to refrain from applying for protection to a
public servant
CHAPTER XI
FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE
191. Giving false evidence
192. Fabricating false evidence
193. Punishment for false evidence
194. Giving or fabricating false evidence with intent to procure conviction of a capital
offence
195. Giving or fabricating false evidence with intent to procure conviction of an offence
punishable with imprisonment
196. Using evidence known to be false
197. Issuing or signing a false certificate
198. Using as a true certificate one known to be false in a material point
199. False statement made in any declaration which is by law receivable as evidence
200. Using as true any such declaration known to be false
201. Causing disappearance of evidence of an offence committed, or giving false

information touching it, to screen the offender
202. Intentional omission to give information of an offence, by person bound to inform
203. Giving false information respecting an offence committed
204. Destruction of document or electronic record to prevent its production as evidence
204A. Obstructing, preventing, perverting or defeating course of justice
204B. Bribery of witnesses
205. False personation for the purpose of any act or proceeding in a suit
206. Fraudulent removal or concealment of property to prevent its seizure as a forfeiture

or in execution of a decree
207. Fraudulent claim to property to prevent its seizure as a forfeiture or in execution of

a decree
208. Fraudulently suffering a decree for a sum not due
209. Fraudulently or dishonestly making a false claim before a court of justice
210. Fraudulently obtaining a decree for a sum not due
211. False charge of offence made with intent to injure
212. Harbouring an offender
213. Taking gifts, etc., to screen an offender from punishment
214. Offering gift or restoration of property in consideration of screening offender
215. Taking gift to help to recover stolen property, etc.
216. Harbouring an offender who has escaped from custody, or whose apprehension
has been ordered
216A. Harbouring robbers or gang-robbers, etc.
216B. Harbour
217. Public servant disobeying a direction of law with intent to save person from
punishment or property from forfeiture
218. Public servant framing an incorrect record or writing with intent to save person from
punishment, or property from forfeiture
219. Public servant in a judicial proceeding making an order, etc., which he knows to be
contrary to law
220. Commitment for trial or confinement by a person having authority who knows that
he is acting contrary to law
221. Intentional omission to apprehend on the part of a public servant bound by law to
apprehend
222. Intentional omission to apprehend on the part of a public servant bound by law to
apprehend person under sentence of a court of justice
223. Escape from confinement negligently suffered by a public servant
224. Resistance or obstruction by a person to his lawful apprehension
225. Resistance or obstruction to the lawful apprehension of another person
225A. Public servant omitting to apprehend or suffering other persons to escape in

cases not already provided for
225B. Resistance or obstruction to lawful apprehension, or escape, or rescue, in cases

not otherwise provided for
225C. Offences against laws of Singapore where no special punishment is provided
226. Unlawful return from banishment
227. [Repealed]
228. Intentional insult or interruption to a public servant sitting in any stage of a judicial
proceeding
229. Personation of an assessor
CHAPTER XII
OFFENCES RELATING TO COIN AND GOVERNMENT STAMPS
230. Coin and current coin
231. Counterfeiting coin
232. Counterfeiting current coin
233. Making or selling instrument for counterfeiting coin
234. Making or selling instrument for counterfeiting current coin
235. Possession of instrument or material for the purpose of using the same for
counterfeiting coin
236. Abetting in Singapore the counterfeiting out of Singapore of coin or current coin
237. Import or export of counterfeit coin
238. Import or export of counterfeits of current coin
239. Delivery to another of coin, possessed with the knowledge that it is counterfeit
240. Delivery of current coin, possessed with the knowledge that it is counterfeit
241. Delivery to another of coin as genuine, which when first possessed the deliverer
did not know to be counterfeit
241A. Delivery to another of current coin as genuine, which when first possessed the
deliverer did not know to be counterfeit
242. Possession of counterfeit coin by a person who knew it to be counterfeit when he

became possessed thereof
243. Possession of current coin by a person who knew it to be counterfeit when he

became possessed thereof
243A. [Repealed]
246. Fraudulently or dishonestly diminishing the weight or altering the composition of

any coin
247. Fraudulently or dishonestly diminishing the weight or altering the composition of

current coin
248. Altering appearance of any coin with intent that it shall pass as a coin of a different
description
249. Altering appearance of current coin with intent that it shall pass as a coin of a
different description
250. Delivery to another of coin possessed with the knowledge that it is altered
251. Delivery of current coin possessed with the knowledge that it is altered
252. Possession of altered coin by a person who knew it to be altered when he became
possessed thereof
253. Possession of current coin by a person who knew it to be altered when he became
possessed thereof
254. Delivery to another of coin as genuine, which when first possessed the deliverer
did not know to be altered
254A. Delivery to another of current coin as genuine, which when first possessed the
deliverer did not know to be altered
255. Counterfeiting a Government stamp
256. Having possession of an instrument or material for the purpose of counterfeiting a

Government stamp
257. Making or selling an instrument for the purpose of counterfeiting a Government

stamp
258. Sale of counterfeit Government stamp
259. Having possession of a counterfeit Government stamp
260. Using as genuine a Government stamp known to be counterfeit
261. Effacing any writing from a substance bearing a Government stamp, or removing
from a document a stamp used for it, with intent to cause loss to Government
262. Using a Government stamp known to have been before used
263. Erasure of mark denoting that stamp has been used
CHAPTER XIII
OFFENCES RELATING TO WEIGHTS AND MEASURES
264. Fraudulent use of false instrument for weighing
265. Fraudulent use of false weight or measure
266. Being in possession of false weights or measures
267. Making or selling false weights or measures
CHAPTER XIV
OFFENCES AFFECTING THE PUBLIC TRANQUILITY, PUBLIC HEALTH, SAFETY,

CONVENIENCE, DECENCY AND MORALS
267A. Affray
267B. Punishment for committing affray
267C. Making, printing, etc., document containing incitement to violence, etc.
268. Public nuisance
269. Negligent act likely to spread infection of any disease dangerous to life
270. Malignant act likely to spread infection of any disease dangerous to life
271. Disobedience to a quarantine rule
272. Adulteration of food or drink which is intended for sale
273. Sale of noxious food or drink
274. Adulteration of drugs
275. Sale of adulterated drugs
276. Sale of any drug as a different drug or preparation
277. Fouling the water of a public spring or reservoir
278. Making atmosphere noxious to health
279. Rash driving or riding on a public way
280. Rash navigation of a vessel
281. Exhibition of a false light, mark or buoy
282. Conveying person by water for hire in a vessel overloaded or unsafe
283. Danger or obstruction in a public way or navigation
284. Negligent conduct with respect to any poisonous substance
285. Negligent conduct with respect to any fire or combustible matter
286. Negligent conduct with respect to any explosive substance
287. Negligent conduct with respect to any machinery in the possession or under the
charge of the offender
288. Negligence in pulling down or repairing buildings
289. Negligence with respect to any animal
290. Punishment for public nuisance
291. Continuance of nuisance after injunction to discontinue
292. Sale of obscene books, etc.
293. Sale, etc., of obscene objects to young person
294. Obscene songs
CHAPTER XV
OFFENCES RELATING TO RELIGION OR RACE
295. Injuring or defiling a place of worship with intent to insult the religion of any class
296. Disturbing a religious assembly
297. Trespassing on burial places, etc.
298. Uttering words, etc., with deliberate intent to wound the religious or racial feelings
of any person
298A. Promoting enmity between different groups on grounds of religion or race and
doing acts prejudicial to maintenance of harmony
CHAPTER XVI
OFFENCES AFFECTING THE HUMAN BODY
Offences affecting life
299. Culpable homicide
300. Murder
301. Culpable homicide by causing the death of a person other than the person whose
death was intended
302. Punishment for murder
304. Punishment for culpable homicide not amounting to murder
304A. Causing death by rash or negligent act
305. Abetment of suicide of child or insane person
306. Abetment of suicide
307. Attempt to murder
308. Attempt to commit culpable homicide
309. Attempt to commit suicide
310. Infanticide
311. Punishment for infanticide
Causing miscarriage; injuries to unborn children; exposure of infant; and

concealment of births
312. Causing miscarriage
313. Causing miscarriage without womans consent
314. Death caused by act done with intent to cause miscarriage
315. Child destruction before, at or immediately after birth
316. Causing death of a quick unborn child by an act amounting to culpable homicide
317. Exposure and abandonment of a child under 12 years by parent or person having
care of it
318. Concealment of birth by secret disposal of dead body
Hurt
319. Hurt
320. Grievous hurt
321. Voluntarily causing hurt
322. Voluntarily causing grievous hurt
323. Punishment for voluntarily causing hurt
324. Voluntarily causing hurt by dangerous weapons or means
325. Punishment for voluntarily causing grievous hurt
326. Voluntarily causing grievous hurt by dangerous weapons or means
327. Voluntarily causing hurt to extort property or to constrain to an illegal act
328. Causing hurt by means of poison, etc., with intent to commit an offence
329. Voluntarily causing grievous hurt to extort property, or to constrain to an illegal act
330. Voluntarily causing hurt to extort confession or to compel restoration of property
331. Voluntarily causing grievous hurt to extort confession or to compel restoration of

property
332. Voluntarily causing hurt to deter public servant from his duty
333. Voluntarily causing grievous hurt to deter public servant from his duty
334. Voluntarily causing hurt on provocation
335. Causing grievous hurt on provocation
336. Punishment for act which endangers life or the personal safety of others
337. Causing hurt by an act which endangers life or the personal safety of others
338. Causing grievous hurt by an act which endangers life or the personal safety of
others
339. Wrongful restraint
340. Wrongful confinement
341. Punishment for wrongful restraint
342. Punishment for wrongful confinement
343. Wrongful confinement for 3 or more days
344. Wrongful confinement for 10 or more days
345. Wrongful confinement of person for whose liberation a writ has been issued
346. Wrongful confinement in secret
347. Wrongful confinement for the purpose of extorting property or constraining to an

illegal act
348. Wrongful confinement for the purpose of extorting confession or of compelling

restoration of property
Criminal force and assault
349. Force
350. Criminal force
351. Assault
352. Punishment for using criminal force otherwise than on grave and sudden
provocation
353. Using criminal force to deter a public servant from discharge of his duty
354. Assault or use of criminal force to a person with intent to outrage modesty
354A. Outraging modesty in certain circumstances
355. Assault or criminal force with intent to dishonour otherwise than on grave and
sudden provocation
356. Assault or criminal force in committing or attempting to commit theft of property

carried by a person
357. Assault or criminal force in attempting wrongfully to confine a person
358. Assaulting or using criminal force on grave and sudden provocation
Kidnapping, abduction, slavery and forced labour
359. Kidnapping
360. Kidnapping from Singapore
361. Kidnapping from lawful guardianship
362. Abduction
363. Punishment for kidnapping
363A. Punishment for abduction
364. Kidnapping or abducting in order to murder
364A. [Repealed]
365. Kidnapping or abducting with intent secretly and wrongfully to confine a person
366. Kidnapping or abducting a woman to compel her marriage, etc.
367. Kidnapping or abducting in order to subject a person to grievous hurt, slavery, etc.
368. Wrongfully concealing or keeping in confinement a kidnapped person
369. Kidnapping or abducting child under 10 years with intent to steal movable property
from the person of such child
370. Buying or disposing of any person as a slave
371. Habitual dealing in slaves
372. Selling minor for purposes of prostitution, etc.
373. Buying minor for purposes of prostitution, etc.
373A. Importing woman for purposes of prostitution, etc.
374. Unlawful compulsory labour
Sexual offences
375. Rape
376. Sexual assault by penetration
376A. Sexual penetration of minor under 16
376B. Commercial sex with minor under 18
376C. Commercial sex with minor under 18 outside Singapore
376D. Tour outside Singapore for commercial sex with minor under 18
376E. Sexual grooming of minor under 16
376F. Procurement of sexual activity with person with mental disability
376G. Incest
377. Sexual penetration of a corpse
377A. Outrages on decency
377B. Sexual penetration with living animal
377C. Interpretation of sections 375 to 377B (sexual offences)
377D. Mistake as to age
Theft
378. Theft
379. Punishment for theft
379A. Punishment for theft of a motor vehicle
380. Theft in dwelling-house, etc.
381. Theft by clerk or servant of property in possession of master
382. Theft after preparation made for causing death or hurt in order to commit theft
Extortion
383. Extortion
384. Punishment for extortion
385. Putting person in fear of harm in order to commit extortion
386. Extortion by putting a person in fear of death or grievous hurt
387. Putting person in fear of death or of grievous hurt in order to commit extortion
388. Extortion by threat of accusation of an offence punishable with death, or

imprisonment, etc.
389. Putting person in fear of accusation of offence, in order to commit extortion
Robbery and gang-robbery
390. Robbery
391. Gang-robbery
392. Punishment for robbery
393. Attempt to commit robbery
394. Voluntarily causing hurt in committing robbery
395. Punishment for gang-robbery
396. Gang-robbery with murder
397. Robbery when armed or with attempt to cause death or grievous hurt
399. Making preparation to commit gang-robbery
400. Punishment for belonging to gang-robbers
401. Punishment for belonging to wandering gang of thieves
402. Assembling for purpose of committing gang-robbery
403. Dishonest misappropriation of property
404. Dishonest misappropriation of property possessed by a deceased person at the

time of his death
Criminal breach of trust
405. Criminal breach of trust
406. Punishment of criminal breach of trust
407. Criminal breach of trust by carrier, etc.
408. Criminal breach of trust by clerk or servant
409. Criminal breach of trust by public servant, or by banker, merchant, or agent
Receiving stolen property
410. Stolen property
411. Dishonestly receiving stolen property
412. Dishonestly receiving property stolen in the commission of a gang-robbery
413. Habitually dealing in stolen property
414. Assisting in concealment or disposal of stolen property
Cheating
415. Cheating
416. Cheating by personation
417. Punishment for cheating
418. Cheating with knowledge that wrongful loss may be thereby caused to a person
whose interest the offender is bound to protect
419. Punishment for cheating by personation
420. Cheating and dishonestly inducing a delivery of property
Fraudulent deeds and dispositions of property
421. Dishonest or fraudulent removal or concealment of property to prevent distribution

among creditors
422. Dishonestly or fraudulently preventing a debt or demand due to the offender from
being made available for his creditors
423. Dishonest or fraudulent execution of deed of transfer containing a false statement

of consideration
424. Dishonest or fraudulent removal or concealment of property or release of claim
425. Mischief
426. Punishment for committing mischief
427. Committing mischief and thereby causing loss or damage to the amount of $500
428. Mischief by killing or maiming any animal
429. [Repealed]
430. Mischief by injury to works of irrigation or by wrongfully diverting water
430A. Mischief affecting railway engine, train, etc.
431. Mischief by injury to public road, bridge or river
431A. Mischief by injury to telegraph cable, wire, etc.
432. Mischief by causing inundation or obstruction to public drainage, attended with

damage
433. Mischief by destroying or moving or rendering less useful a lighthouse or sea-mark
434. Mischief by destroying or moving, etc., a landmark fixed by public authority
435. Mischief by fire or explosive substance with intent to cause damage
436. Mischief by fire or explosive substance with intent to destroy a house, etc.
437. Mischief with intent to destroy or make unsafe a decked vessel or a vessel of 20
tons burden
438. Punishment for the mischief described in section 437 when committed by fire or
any explosive substance
439. Punishment for intentionally running vessel aground or ashore with intent to
commit theft, etc.
440. Mischief committed after preparation made for causing death or hurt
Criminal trespass
441. Criminal trespass
442. House-trespass
443. Lurking house-trespass
444. Lurking house-trespass by night
445. House-breaking
446. House-breaking by night
447. Punishment for criminal trespass
448. Punishment for house-trespass
449. House-trespass in order to commit an offence punishable with death
450. House-trespass in order to commit an offence punishable with imprisonment for life
451. House-trespass in order to commit an offence punishable with imprisonment
452. House-trespass after preparation made for causing hurt, etc.
453. Punishment for lurking house-trespass or house-breaking
454. Lurking house-trespass or house-breaking in order to commit an offence

punishable with imprisonment
455. Lurking house-trespass or house-breaking after preparation made for causing hurt,
etc.
456. Punishment for lurking house-trespass by night or housebreaking by night
457. Lurking house-trespass by night or house-breaking by night in order to commit an

offence punishable with imprisonment
458. Lurking house-trespass by night or house-breaking by night after preparation made

for causing hurt, etc.
458A. Punishment for subsequent offence under section 454 or 457
459. Grievous hurt caused while committing lurking house-trespass or house-breaking
460. Lurking house-trespass by night or house-breaking by night when death or

grievous hurt is caused
461. Dishonestly breaking open any closed receptacle containing or supposed to

contain property
462. Punishment for same offence when committed by person entrusted with custody
CHAPTER XVIII
OFFENCES RELATING TO DOCUMENTS OR ELECTRONIC RECORDS, FALSE

INSTRUMENTS, AND TO CURRENCY NOTES AND BANK NOTES
463. Forgery
464. Making a false document or false electronic record
465. Punishment for forgery
466. Forgery of a record of a court of justice, or a public register of births, etc.
467. Forgery of a valuable security or will
468. Forgery for the purpose of cheating
469. Forgery for the purpose of harming the reputation of any person
470. A forged document or a forged electronic record
471. Using as genuine a forged document or forged electronic record
472. Making or possessing a counterfeit seal, plate, etc., with intent to commit a forgery
punishable under section 467
473. Making or possessing a counterfeit seal, plate, etc., with intent to commit a forgery
punishable otherwise
473A. Making or possessing equipment for making a false instrument
473B. Making or possessing equipment for making a false instrument with intent to
induce prejudice
473C. Meaning of prejudice and induce
474. Having possession of certain document or electronic record known to be forged,

with intent to use it as genuine
475. Counterfeiting a device or mark used for authenticating documents described in

section 467, or possessing counterfeit marked material
476. Counterfeiting a device or mark used for authenticating documents or electronic

records other than those described in section 467, or possessing counterfeit marked
material
477. Fraudulent cancellation, destruction, etc., of a will
477A. Falsification of accounts
Currency notes and bank notes
489A. Forging or counterfeiting currency notes or bank notes
489B. Using as genuine forged or counterfeit currency notes or bank notes
489C. Possession of forged or counterfeit currency notes or bank notes
489D. Making or possessing instruments or materials for forging or counterfeiting

currency notes or bank notes
489E. [Repealed]
CHAPTER XX
OFFENCES RELATING TO MARRIAGE
493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
494. Marrying again during the lifetime of husband or wife
495. Same offence with concealment of the former marriage from the person with whom
subsequent marriage is contracted
496. Marriage ceremony gone through with fraudulent intent without lawful marriage
498. [Repealed]
CHAPTER XXI
DEFAMATION
499. Defamation
500. Punishment for defamation
501. Printing or engraving matter known to be defamatory
502. Sale of printed or engraved substance containing defamatory matter
CHAPTER XXII
CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE
503. Criminal intimidation
504. Intentional insult with intent to provoke a breach of the peace
505. Statements conducing to public mischief
506. Punishment for criminal intimidation
507. Criminal intimidation by an anonymous communication
508. Act caused by inducing a person to believe that he will be rendered an object of
divine displeasure
509. Word or gesture intended to insult the modesty of a woman
510. [Repealed]
CHAPTER XXIII
ATTEMPTS TO COMMIT OFFENCES
511. Punishment for attempting to commit offences
THE CRIMINAL PROCEDURE CODE[9]

(a) Individual Rights
(i) Police can make an arrest on any person without a warrant of arrest if the police
reasonably suspect a man of committing a serious offence. Arrestable offences without
a warrant include rape, causing serious hurt, robbery, theft or drug consumption.
However, for a normally non-arrestable offence, it is mandatory for the police to conduct
an investigation before executing an arrest.
(ii) Upon arrest, the individual has the right to request the police for identification and the
reason for his or her arrest, at this point handcuffs may be used. Should there require a
body search, the female accused can only be searched by female police officers.
(iii) At the police station, the accused has the right to consult a lawyer within a
reasonable time. Accused may also contact their family members provided that they do
not interfere with the investigation that the accused is charged with.
(iv) The Police can only detain the accused for 48 hours at most, but extension may be
made by obtaining a Magistrates order if the police deem fit to hold the accused under
custody to continue with the investigations. Should extension be requested, police must
then make a submission to the Judge entailing the reason(s) for the extension of the
detention. The Judge will then have to consider the adequacy of the reason(s)
submitted and decide whether extension may be allowed.
(v) The accused has the right against self-incrimination and the right to a lawyer. This
ensures impartiality which is an important element in due process; protecting the
fairness and reliability of the statement that had been taken [4]. However, adverse
inference may be drawn[5] and guilt may be inferred if the accused remains silent and
does not state his defence, if any at the earliest possible time.
(vi) Investigations are mandatory before an individual can be charged in Court.

Investigations are carried out to determine the reliability of any evidence claiming your
innocence or guilt.
(vii) The following are some of the enforcement agencies that are empowered to
conduct Investigations[6]:
Police officers;
Central Narcotics Bureau (CNB) officers;
Corrupt Practices Investigation Bureau (CPIB) officers;
Immigration officers;
Customs officers;
Commercial Affairs Department (CAD) officers;
Any other officers who are given the power to investigate under the Law; and
(viii) Some of the powers of an investigating officer are as follows [7]:
To order a person to go to a police station or other place for questioning and for taking
of a statement:
To record what you have to say and ask you to sign it;
To search a place and take away things to be used as evidence; and
To seize properties which may be exhibits in the case.
(b) Arrest and Court Procedure[10]
Once being arrested, police officers may conduct a search on you physically and bring
you to a nearby Police Station for questioning. After the questioning session, you may
be held in a lock-up. Any personal belongings that you have with you will be taken by
the Police and a list of these belongings will be recorded and subject to your
confirmation. A copy of this list will also be given to you.
(i) Types of Arrest[11]
Arrest without a warrant
This happens when a police officer possesses credible information or reasonable

believed that the suspect is involved in an arrestable offence. An arrest without warrant
must be founded on reliable and definite facts.
Arrest with a warrant
A warrant of arrest or a summon is required for a non-arrestable offence before the

arrest is made. Police are not allowed to make an arrest in the absence of a warrant.
Private arrest
Private arrest is only allowed in situations where any person who commits a nonbailable and arrestable offence in anothers view or presence. The arrested person must
be handed over to the nearest police officer or police station without unnecessary delay.
A private person has the right to arrest another as long as he is in a close proximity to
the incident even if he is not a witness to the incident.
In the second situation, a victim of the crime can apprehend the perpetrator, who
commits an offence against the victim or the victims property. In order to make an
arrest, the name or residential address of the perpetrator must be unknown; or his
residential address must be outside Singapore; or there is reason to believe that the
name or residential address he gave is false.
(ii) At The Police Station[12]
Detained at the police station
The accused only be detained for maximum 48 hours. If it is for more than 48 hours,
police will have to prefer the charge via videolink or bring the accused to court where
the officer furnish reasons for the extension of the accuseds detention. The Judge will
then have to consider the adequacy of the reasons that were given to decide whether
the accused should be further detained or to be placed on bail.
If the accused is not detained for more than 48 hours, he or she will be put on Police
bail to ensure he or she will come back to the station or to attend Court when told to do
so. The accused will require a family member or friend in order to be bailed out.
Process of Interview
Upon being arrested and detained, the accused is entitled to make a call to his or her
family member, friend or lawyer to inform them of his or her arrest. Whilst in custody, the
accused will be interviewed at length with breaks in between. He or she can also be
taken to the crime scene. DNA samples, such as blood sample, fingerprint and photo
identification are taken of he or she. Sometimes, the accused can be asked to take a
lie-detector test. Any statement taken from him or her is called the long statement.
When the accused is shown his or her statements, he or she has to look through the
statement and correct the discrepancies and sign at the relevant amendments and at
the bottom of the page as indicated by the police officer.
Translator
The accused is allowed to request for an interpreter to help with the translation during
recording of the statement. This is to ensure accuracy of the statement that is taken. It
is always a good practice to record what had been told to the police officer before the
accused meet the lawyer.
(ii) Investigation
Investigations can stretch from a few days to a year or two. It is advisable to cooperate with the police to provide witnesses, Defence or Alibi (if any). Alternatively, the
accused can engage a lawyer to prepare a letter of representation on his or her behalf.
If the accused has an Alibi, he or she has to give the full details to his or her lawyers so
that they can do the necessary. Once investigations are done, the police officer will
submit the case file to the Prosecution who will then make the decision of whether or
not to charge the accused.
The police officer will contact the accused if he or she is being charged. The meeting at
the police station will be for the purposes of preferring the charge against the accused,
i.e. reading the charge and asking the accused if he or she will be admitting to the
charge. Signing the sheet without having to agree to the charge does not mean that
there was any admittance. That is only a formality. Any refusal to sign on the sheet will
be recorded as the accused being refused to sign on it. However, not signing on the
sheet does not mean serious consequence, it is also one of the right of the accused not
to sign on the sheet. The charge is followed by a notice of warning, which is known as
the Cautioned Statement.
This is the opportunity for the accused to state his or her Defence. Do not be hasty to
think that all has been recorded accurately in the long statement, thus no repetition is
necessary. The accused will be given the choice to either write down his or her defence
or it must be recorded by the investigating officer in the English Language, which will be
read it to the accused. Correction must be made should there appear to be any mistake.
Once verified, the accused must signed on it and this will constitute his or
her Cautioned Statement.
BAIL[13]
Bail is a form of property deposited or pledged by the family member or friend of the
accused, as the Bailor, either with the police or the courts in order to secure the
release of an accused person from remand prison on the understanding that you will
ensure that the accused will return to court for the hearing until the final completion of
the case.
What are the common types of bail?
(i) The two common types of bail are:
(a) bail granted by the prosecuting agency (commonly known as Police Bail); and
(b) bail granted by the courts (commonly known as Court Bail).
(ii) Does this mean an accused person cannot be his own Bailor?
Yes, unless the Court directs otherwise.
(iii) Who can offer bail?
The prosecuting agencies, including the Police, the Commercial Affairs Department, the
Corrupt Practices Investigation Bureau, and the courts can offer bail. If no bail is offered
by the prosecuting agencies, the accused may still make an application to the court for
bail to be offered when the case is first heard in court.
(iv) Who can be a bailor?
You can be a bailor if you are:
Aged 21 years and above

Not a bankrupt.
No pending case in the courts
A Singapore citizen or a Permanent Resident of Singapore
Prepared to accept the responsibilities of a bailor until the case is over
Prepared to pledge security whether in cash or in personal properties for the amount
of bail as ordered by the Court.
(i) What if there is no suitable bailor?
An accused will have to remain in remand prison pending hearing of his case if there is
no suitable bailor.
(ii) Can the accused still be bailed out later even though he was initially
unsuccessful in getting a bailor? If so, what is the procedure?
The accused may be bailed out at any time provided that bail has been offered. A willing
bailor should then personally attend at the prosecuting agency (for Police Bail) or at the
Bail Centre of the State Courts (for Court Bail) with the necessary documents and
security required.
(vi) What are the usual conditions that may be imposed before bail is offered?
The prosecuting agency or the Court may impose the following conditions:
The accuseds passport be surrendered

Requiring that accused person be only able to leave at and/or shall return to his home
by a certain time
Requiring the accused to report to the Investigation Officer (IO) on certain days of the
week
Requiring that that there be only one or more bailors
That only cash may be used as security for bail.
(vii) What are the responsibilities of a bailor?
A bailors key responsibility is to ensure that the accused attends all court hearings at
the required time and date until the case has been concluded. If the accused fails to
attend a court hearing, the full bail amount pledged as security may be forfeited. The
bailor must also ensure that the accused does not leave Singapore without the Courts
permission.
(viii) What documents must a bailor bring if the bail is being processed at the
prosecuting agency and/or Bail Centre?
The bailor must bring along with him the following documents:
The bailors Identity Card or Passport

The accuseds passport (if it is required by the prosecuting agency or the Court as a
condition of bail)
The documents as stated in S/N 12 below and depending how the bailor wishes to
furnish the bail sum.
(ix) What if the bailor cannot speak English?
Court Staff will assist those who are not able to speak English but are able to converse
in Malay, Mandarin, local Chinese dialects and Tamil.
(x) What can the bailor pledge or deposit to the court as security for the bail
amount?
In addition to cash, the bailor may pledge:
Fixed or Time Deposit. This is provided the bailor is the account holder with at least 6
months before its maturity, and that the sum has not already been used as a form of
security
Monies in the savings account. This is provided there are no deductions made from
that account for GIRO or any other payment. The updated savings passbook or bank
statement, must be brought to the prosecuting agency or Court offering bail as the case
may be
Cashiers Order. This should be made payable either to the prosecuting agency (for
Police Bail) or the Registrar, State courts (for Court Bail) for the exact bail amount
NETS payment. This is through the bailors own ATM card. Please note that for ATM
cards, there may be a maximum withdrawal up to $2,000 per day
Bailors personal properties not exceeding $15,000.
Note: If the bailor is using cash, a copy of his bank statement (indicating Name and
NRIC No. of account holder & Account No.) must be provided either to the prosecuting
agency (for Police Bail) or the Bail Centre (for Court Bail).
(xi) Can the bailor pledge money or assets that belong to the accused person as
security for bail?
No. The monies and properties must belong to the bailor.
(xii) Can the bailor still use his bank account, fixed/time deposit as he wishes after he
has pledged the amount as bail sum?
No. In addition, the bank will be notified to freeze the bank account/deposits.
(xiii) What if the bank account has joint names?
Joint account cannot be used as security by one account holder. To utilize such an
account as bail sum, both account holders will have to be bailors.
(xiv) When will the bailor get the bail monies back?
When a case has concluded or if the bailor has been granted a discharge, the bailor
may obtain the return of the full sum of bail monies deposited. For Court Bail, if cash
was deposited with the State courts, the bail amount would be directly refunded to the
bailor by the Accountant-General by way of crediting directly into the bailor's bank
account furnished by the bailor at the point of standing bail. The bailor may enquire from
the Finance Section (Tel: 6435-5869) of the State courts should there be any further
queries. For Police Bail, the bailor can contact the IO assigned to the case for more
information on refund of bail sum.
(xv) What if the bailor no longer wishes to stand as bailor for the accused
person?
The bailor will have to apply in writing (min. 1 week in advance) to the Court for the
application to be heard. During the court mention, the bailor must be personally present
together with the accused for the application to discharge as bailor. Once the bailor is
discharged, to secure the release of the accused pending hearing, the accused must
arrange for a substitute bailor.
(xvi) Can the accused leave Singapore after bail is given?
The accused person may only leave Singapore with the permission of the Court. Both
the bailor and the accused must be present when the application is made to leave
jurisdiction. The application can be made at the next court mention. If it is urgent, the
accused can request in writing to the Court seeking an early date to make the
application. In such instances, it is common for the Court to increase the bail amount to
allow the accused to leave jurisdiction.
(xvii) What if the accused person fails to turn up in court as required?
If the accused fails to attend Court as required, a Warrant of Arrest may be issued
against the accused. The bailor will also have to attend a hearing to explain why the full
bail amount should not be forfeited. The latter is commonly known as a hearing for the
Bailor To Show Cause.
(xviii) Will fresh bail be offered after an accused person is first charged in court?
Whether the original Police Bail will be extended or fresh Court Bail offered is at the
discretion of the Court.
(xix) When should the bailor attend court?
The bailor should attend court:
At the first court hearing of the accused person, where possible

If the bailor wishes to apply to the court to discharge himself as a bailor
If the accused wishes to make an application to the Court to leave Singapore
Where the bailor has been asked to Show Cause why the bail monies should not be
forfeited as a result of the accused failing to attend a court hearing.
(xx) Can the bailor later ask for the bail amount to be lowered?
The application may be made through the accused. The granting of such an application
is rare.
(xxi) What if the assets that the bailor pledged are insufficient to meet the bail
amount forfeited?
When the bail amount is forfeited and the assets sold are insufficient to meet the
forfeited bail amount, the bailor will have to pay the difference. If the bailor does not pay,
enforcement action will be taken.
(xxii) Is there a channel to request to review or appeal on bail related matters?
There is no channel to appeal against a decision on the bail offered for Police Bail
before an accused is charged in court. If an accused has been charged in court, and it
is felt that either bail ought to have been offered or that a lower sum of bail ought to
have been offered, the accused can request for a bail review to be conducted. If the bail
amount was forfeited whether in full or in part, the aggrieved bailor may appeal to the
High Court against the forfeiture.
(xxiii) Where is the Bail Centre?
The Bail Centre is at the Crime Registry of the State courts.

The Crime Registry is located on the ground floor of the State courts,
1 Havelock Square, Singapore 059724.
(xxiv) What are the operating hours of the Bail Centre?
Mon-Thu 9.00AM - 6.00PM (Last registration at 12.30 pm & 5.00 pm)

Fri 9.00AM - 5.30PM (Last registration at 12.30 pm & 4.30 pm)
Sat 9.00AM 1.00PM (Last registration at 12.00 pm)
FIRST COURT APPEARANCE[14]

The accused will be informed of the date to appear in Court once he or she is on the
police bail bond. He or she may instruct his or her counsels to act on his or her behalf.
The lawyer may attend the court session with the accused. However, if the notice is too
short, the accused may attend court session with his or her bailor and seek for
adjournment while looking for a lawyer to represent you. The court will allow the
adjournment and to extend the police bail or to place the accused on court bail. Each
offence you are alleged to have committed will be listed as a SEPARATE CHARGE.
1. When Charged in Court
(a) Pleading Guilty
It is always advisable to have an understand of the minimum and maximum punishment

that the accused may receive for the alleged offence that he or she is charge with. The
accused must accept whatever punishment the Court may sentence. The Statement of
Facts (relating to the accused/the offence that he or she had committed) will then be
read out. There is no need for defence counsels if the accused is ready to accept the
sentences that are to be meted out to him or her. However, counsels must voice out
should there be any dispute with any of the facts.
Should there be any dispute with the Statement of Facts regarding important issues, the
Court will NOT accept any plea of guilt. He or she will be directed to claim trial to the
charge.
(b) Not Pleading Guilty
A Pre-Trial Conference (PTC)[8] will be fixed in the event where there is no admittance of
guilt.
(c) Trial Process
(i) Examination-in-chief
The Prosecution will present their case by calling their witnesses to stand and asking
them questions.
(ii) Cross Examination
The defence lawyer will be allowed to question the Prosecutions witness.
They can challenge and/or contradict what the Prosecution Witness has said with
documentary evidence (if any). The challenge will be based on what was said or not
said. The Defence lawyer will also put forth events according to the perspective of the
accused to check if the Prosecutions witness agrees with it.
(iii) Re-Examination
The Prosecution would then ask their witness further questions, to clarify their answers
given to your lawyer during cross-examination.
(iv) Submission of no-case to answer
If the accused felt that the prosecution has not proven the case against him or her, he or
she can consult and instruct the defence lawyers to give a submission on NO CASE.
(v) Post Trial
1. Making closing submissions. - Both sides will have to summarize all the evidences
and make respective arguments to the Court.
2. The Court will then decided if the accused is guilty (convicted) or not guilty
(acquitted). The court also has the power to reduce the charge against the accused.
3. Can the accused contest the Courts final decision?
If the accused is convicted after a trial, he or she can appeal against the Courts
decision on his or her conviction and/or his or her sentence. However, if the accused
have pleaded guilty, he or she can only appeal against the sentence and this appeal
must be filed with the Criminal Justice Divisions Registry within 10 calendar days from
the date the verdict of the accused was announced. It is important to note that there is
no guarantee the appeal will be successful and always advised the accused to consult
the advice of the defence counsel when making such important decision.
PRESIDENTIAL CLEMENCY
(only applicable to accused who are sentenced with the death penalty)
Singapores President may grant pardons, reprieves, respites and re- missions under
Article 22P of the Constitution of the Republic of Singapore (hereinafter Singapore
Constitution). Article 22P of the Singapore Constitution also states that The President,
as occasion shall arise, may, on the advice of the Cabinet, grant a pardon.
Article 21 of the Singapore Constitution clearly lists out the discharge and performance
of functions of the President. The powers of the president consist of 4 things and unless
otherwise provided for the President must act on the advice of the Cabinet. Article 21(2)
lists eight specific matters which the president has personal discretion and a final openended one: the President has personal discretion in performing any other function
authorized by the Singapore Constitution.
However, under Article 21(3), the President must consult the Council of Presidential
Advisers before performing functions specifically provided for [9]. Under Article 21(4), the
Council may be consulted in performing some of the independent functions provided for
in Article 21(2). Hence, the President has both independent and dependent powers [10].
In relation to the power to grant pardons, there have been arguments stating that the
open-ended Article 21(2)(i) when read together with Article 22P suggests that the
President is not bound by the Cabinets advice in such matters [11].
REFERENCES
1. This Journal Article is brought to you for free and open access by the School of
Law at Institutional Knowledge at Singapore Management University. It has been
accepted for inclusion in Research Collection School of Law by an authorized
administrator of Institutional Knowledge at Singapore Management University. For
more information, please email libIR@smu.edu.sg
2. D A MShubhankar. Presidential Pardon in Singapore: A Comment on Yong Vui
Kong v A.G. (2013). Common Law World Review., 42(1), 48. Research Collection
School of Law.
3. An Act to consolidate the law relating to criminal offences. [16th September 1872]
4. Singapore Academy of Law Journal (2013) 25 SAcLJ The Privilege Against SelfIncrimination and Right of Access to a Lawyer; A Comparative Assessment
5. Section 22 of the Criminal Procedure Code. Also see Kwek Seow Hock v Public
Prosecutor [2011] 3 SLR 157
6. Reference was made to: http://www.singaporecriminallawyer.com/your-rights/
7. Reference was made to: http://www.singaporecriminallawyer.com/your-rights/
8. A PTC is to update the judge on how the case is progressing, and to determine if
the case is ready to proceed to trial. Trial dates will only be fixed when all parties are
ready and prepared for trial.
9. This Council is a constitutional body under Article 37B of the Singapore
Constitution. It comprises six members, of whom two are appointed by the
President, two are appointed by the Prime Minister, while the Chief Justice and the
Chairman of the Public Service Commission appoint one member each.
10. D A MShubhankar. Presidential Pardon in Singapore: A Comment on Yong Vui
Kong v A.G. (2013). Common Law World Review., 42(1), 48. Research Collection
School of Law.
11. Also see: Yong Vui Kong v Attorney-General [2011] SGCA 9. The ('Pardon Case')
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Disclaimers
Background
The Socialist Republic of Vietnam comprises 58 provinces, 5 municipalities, and its capital is Hanoi. In 1858,
France began the conquest of Vietnam which ended in 1887, when the latter became part of the French
Indochina. Vietnam declared its independence after World War II, but France continued to rule until its 1954
defeat by Communist forces led by Ho Chi Minh.
Under the Geneva Accords of 1954, Vietnam was divided into the communist north and anti-communist south.
US economic and military aid to South Vietnam grew through the 1960s in an attempt to bolster the
government, but US armed forces were withdrawn following a cease-fire agreement in 1973. Two years later,
North Vietnamese forces overran South Vietnam reuniting the country under communist rule.
The Vietnamese government has demonstrated a strong commitment and dedication to ensuring social and
political stability as well as economic progress, as evidenced by the policies and changes implemented over
the years. The introduction of Doi Moi (reform) in 1986 has put Vietnam in a position to prosper and flourish
economically. The legal system is under revision, as demonstrated by the 1992 Constitution and 1988 Criminal
Procedure Code.
More recently, Vietnam became the 150th member of the World Trade Organization (WTO). With these new
developments, Vietnam is in the process of bringing its legal system up to international standards and is
introducing many new laws and needs help to implement them. Improvements in laws relating to legal aid and
rights of lawyers, too, while providing new opportunities, also create more needs for training, in terms of
lawyers' professional skills.
Type of System
The legal system is based on communist legal theory and French civil law system. Vietnam has a two-tier court
system, made of courts of first instance and courts of appeal. The system consists of the Supreme Peoples
Court, the Provincial Peoples Courts, and the District Peoples Courts. There are specialized courts at the
Supreme Peoples Court, and at the provincial level. These include criminal courts, civil courts, economic
courts, administrative courts and labor courts. The tribunal panels at the first instance are composed of both
judges and peoples jurors (usually one judge and two peoples jurors, Article 185 Criminal Procedure Code).
Peoples jurors at each level are lay people elected by the Peoples Council of the same level, at the
recommendation of the Vietnam Fatherland Front. One major factor of concern related to the independence of
the courts is the unwritten practice of local courts to request opinions from the superior courts, in complex
cases. The district-level peoples courts and the regional military courts shall conduct first-instance trial of
criminal cases involving less serious offenses, serious offenses and very serious offenses, excluding a few
offenses such as the ones involving national security (Article 170 CPC).

The Constitution was approved on 15 April 1992. Chapter V is dedicated to Fundamental Rights and Duties of
the Citizen, and Article 50 affirms that in Vietnam human rights in the political, civic, economic, cultural and
social fields are respected. They are embodied in the citizen's rights and are determined by the Constitution
and the law. The Criminal Procedure Code (CPC) was approved in November 2003.
Defendants' Rights
Vietnamese citizens have the right to file complaints to the competent state authorities, against wrongdoings of
individuals and state agencies. If they suffered losses and injuries, they are entitled to damages and their
reputation shall be rehabilitated (Article 74 Const, Articles 29, 30, 31 CPC). According to both the Constitution
and the Criminal Procedure Code (Article 52 Const., and Article 5 CPC), criminal proceedings shall be
conducted according to law, and on the principle that all citizens are equal before law. All parties enjoy the
same rights, such as the right to present evidence, documents and objects, make claims, and argue before the
court (Article 19 CPC). The accused shall not be considered guilty until a court judgment becomes final (Article
72 Const, Article 9 CPC), and he is also entitled to the right to notice of charges (Article 49 CPC), and the right
to defend himself or ask other persons to defend him. Investigating bodies, procuracies and courts have the
duty to ensure that detainees, accused and defendants exercise their right to defense.
Pre-Trial
In accordance to article 71 Constitution, citizens are considered inviolable, and it is strictly forbidden using all
forms of harassment, coercion, torture, and violation of their honor and dignity. As well, taking a person into, or
holding him in, custody must be done with full observance of the law.
People held in custody shall be informed of the reasons for their custody, and explained about their rights and
obligations. They shall be allowed to defend themselves or ask other persons to defend them, and to complain
about their custody, procedural decisions or acts of the bodies and/or persons with procedure-conducting
competence (Article 48 CPC).
Arrest, custody, temporary detention, ban from travel outside ones residence, guaranty, or deposit of money
may be used to prevent crimes when there are grounds proving that the accused or defendants would cause
difficulties to the investigation, prosecution or adjudication, or they would continue committing offenses (Article
79 CPC).
Arrests require a warrant to be executed, unless offenders are caught red-handed. The arrestee has the right to
be notified of the reasons of the arrest, as well as to have his family notified of the procedure. The person
executing the arrest must strictly implement the law, and in case of violations he can be disciplined or criminally
liable (Articles 6, 12, 80 CPC).
The Criminal Procedure Code states that defense counsels must be present from the commencement of the
criminal proceeding. In case of an arrest, the defense counsel must be present from the time the custody
decisions are issued. However, in cases when it is necessary to keep secret, the chair of procuracies may
decide to allow the participation of defense counsel starting from the termination of the investigation (Article 58
CPC).
Any person who has been arrested, held in custody, prosecuted, brought to trial in violation of the law is
entitled, according to the Constitution, to damages for any material harm suffered and his reputation shall be
rehabilitated (Article 72 Cons).
Searches require a warrant to be executed, as well. Body searches, searches of residences, working places
and premises can be conducted only when there are grounds to believe that there are instruments, or other
objects related to the commission of the offense (Articles 140,141 CPC).
Confrontations and identifications must be conducted following the procedures indicated in Articles 138 and
139 of the Criminal Procedure Code.
The interrogation of the accused must be carried on by investigators immediately after the decision to initiate
criminal proceedings. Investigators must read the decision and clearly explain the accused his rights and
obligations. In case of many accused, each of them must be questioned separately and they shall not be
allowed to contact one another. Investigators are not allowed to conduct interrogation at night, except when it is
otherwise possible, and motivation has to be given. Investigators or procurators who extort statements from the
accused or apply corporal punishment to the accused must bear penal liability (Articles 130, 131 CPC).
Trial
Within 3 days after the decision to go forward with the prosecution, the procuracies must notify the accused
and defense counsels. Within the following three days, the procuracies must send the files and indictments to
the courts (Article 166 CPC). The burden of proof is upon the prosecution, and the defendant has the right not
be forced to prove his innocence (Article 10 CPC).
At trial, defendants have the right to notice of charges and to be informed of any decision regarding their case.
They have the right to participate to court sessions, to receive explanations about their rights and obligations, to
present documents, to defend themselves or ask other persons to defend them, to present opinions, argue at
court sessions; to have final words before the final deliberation; and to appeal against judgments and decisions
of the courts (Article 50 CPC).
The accused, defendant or their lawful representatives have the right to choose their own defense counsel. If
they do not seek legal assistance, the investigating bodies, procuracies or courts must request bar associations
to appoint a defense counsel, in death penalty cases, minors, and people with physical and mental issues. One
defense counsel may defend multiple persons in custody, accused or defendants in the same case, provided
that the rights and interests of such persons are not conflicting. The accused and the defendant may have
more than one defense counsel..
Within three days from the date of receiving the requests of the defense counsel, the investigating bodies,
procuracies or courts must consider and grant him the defense counsels certificates, in order to perform his
duties (Articles 56, 57 CPC).
Defense counsels have the following rights:
To be present when testimonies are taken from the persons in custody, when the accused are
interrogated, and, ask questions to the persons in custody or the accused if so consented by investigators;
and to be present in other investigating activities;
To read the minutes of the proceedings in which they have participated, and procedural decisions
related to the persons whom they defend;
To request investigating bodies to inform them in advance of the time and places of interrogating the
accused so as to be present when the accused are interrogated;
To request the change of procedure-conducting persons, experts and/or interpreters;
To collect documents, objects and details related to their defense;
To present documents, objects as well as claims;
To meet the persons kept in custody;
To meet the accused or defendants being under temporary detention;
To read, take notes of and copy records in the case files, which are related to their defense, after the
termination of investigation according to law provisions; To participate in questioning and arguing at court
sessions;
To complain about procedural decisions and acts of the bodies and persons with procedure-conducting
competence (Article 58 CPC).
Confessions of the accused or defendants shall only be regarded as evidences if they are consistent with other
evidences of the cases. Confessions of the accused or defendants must not be used as sole evidences for
conviction (Article 72 CPC). Defendants, victims and their lawful representatives have the right to appeal
against first-instance judgments or decisions (Article 231 CPC).
QUICK FACTS
2009 Prison Population: 107,668.

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Background

8. Craig M. Bradley, Criminal Procedure A Worldwide Study 34 ( 2d ed., Carolina

23. Craig M. Bradley, Criminal Procedure A Worldwide Study 52 ( 2d ed., Carolina

Only reasonable (proportionate) force can be used by the police officer in

Lineups and other identification procedures

criminal activities of motorcycle gangs and members of

with an offence), they may do so provided the maximum

Fair Trial Rights

Right to a fair trial

basis of undue delay during trial. The right to be tried

evidence' rule is a common law rule that excludes

specific regulations with regard to a number of prison

security risk classification, the classification decisions

Women's rights in prison

by charge-sheet, it will be set down for a

guilty (in which case, a full hand-up brief will

evidence and the accused must be given an

the defendant is prepared to give their own

service; drug treatment order; youth

decisions, such as the decision to discharge,

8. Criminal Code Act 1995 (Cth), s

16. Crimes Act 1958 (Vic), s 456AA(1).

26. Police Powers and Responsibilities

42. Crimes Act 1914 (Cth) s 23C(4).

Responsibilities Act 2000 (Qld) ss

64. Crimes Act 1958 (Vic) s 464C(1).

73. Death Penalty Abolition Act 1973

80. Al-Kateb v Godwin (2004) 219 CLR

88. For example, see Criminal

106. Corrections Act 2009 (Vic), s

Evidence Act 2008 (Vic), s 79.

117. See section 7 of the Sentencing

120. For example, leave to appeal is

See Criminal Justice Systems Around the

Under the Criminal Procedure Code a warrant is required to arrest a person.

Guide to Effective Advocacy in the Cambodian Criminal Justice System

A sincere belief in your client's case. If your client is innocent or substantially

10. CPP Arts. 63-1

Approximately 27.7% of the French prison population consists of pre-trial

began (World Factbook). Today, Germany is recognized by many to be the economic

of detention, the suspects relatives must be informed of the suspects

8. Basic Law, article 2

29. Code of Criminal Procedure, paragraph 224, section 2

Pages with too many expensive parser function calls

Sources of Defendants' Rights

Article 14 disallows discrimination in political, economic, and social realms, suggesting

examination of evidence H. Decision on the order and method of examining evidence

See Criminal Justice Systems Around the World

1. Constitution of Japan, Art. 33

Malaysia is a constitutional monarchy, headed by the King and a bicameral Parliament

arch and seizure

4.7.2 Expost facto

5.3 Civil Action

search and seizure

orcing the rules

ure of the trial

The Criminal Code of

article 20 right to have the case examined by jury trial;

article 22 time limitation of the detention without the courts decision;

article 23 right to privacy of letters limited only by court warrant;

article 24 - ensure right to discovery for everyone;

article 25 privacy of the home;

article 46 guarantee judicial protection of freedoms and rights, the right to

article 47 - the right to the consideration of the case in competent court;