Pierre-Henri Bolle
Professor of Law
University of Neuchâtel (Switzerland)
Treasurer of the Fundation.

Regional or national criminal policies are essentially characterized by their dependence on exigent events, historical precedent, and longitudinal chronological cohesiveness.

These policies are dependant on exigent events because they are based on the social and political incidents which formed them. As an extreme example, a war or revolution such as the 1948 Prague coup d’état will entirely reform a criminal policy.

They are dependant on historical precedent because policy-makers use the past as their primary resource to develop and maintain these policies, and thus the policies appear to consist of a series of achievements or transitory goals.

They are longitudinal because they depend on a wide spread cross-section of current events, people, and state teachings, and take account not only of the past progress of humanity but also of their respective societies hesitations, setbacks, and immediate problems.

Because of this multiple dependence on history, political climate and events, and individual achievement and failure, the criminal policies of a region or nation are often inconsistent, illogical, and random.

On the other hand, a criminal policy designed by an academic association in the penal field has none of the characteristics. The designed policy is not driven by events, but is instead theoretical, systematic, and unified by a cohesive philosophy. It is not historical, but forward-looking, and it is based on practical and scientifically acquired knowledge. Turned as it is towards the future, its structure is related to predetermined goals without being bound by the constraints of one or more existing systems. Finally, it is not longitudinal but transcendental, in the sense that its purpose is universal, surpassing national, historical, geographical, social and political contingencies. The designed policy moves from the general theory to the particular applications, the opposite path that national legislation customarily takes.
I shall try to present the activities of the IPPF with these ideas in mind. It would of course take too long to develop these concepts here and to illustrate them in all their complexity, so I shall restrict myself to one example, which illustrates these trends particularly well.

The International Penitentiary Commission (IPC) was set up in 1878; it became the International Penal and Penitentiary Commission (IPPC) in 1929 when the IPC’s activities were expanded. In 1950, the IPPC formally disbanded itself, and was succeeded the following year by its spiritual daughter, the IPPF. The IPPF took over all of the IPPC’s activities under the aegis of the United Nations, whose General Assembly decided on a statute which is specific to the IPPF, making the IPPF not an NGO but an association sui generis.

From 1929, the IPPC produced an enormously successful formula: a set of minimum rules in very specific areas, but with universal application. At the zenith of Hitler and Mussolini’s fascist regime, Stalin’s brutal authoritarian regimes, and the lingering colonial empires, it was the IPPC which produced the first set of minimum rules for the treatment of detainees. The rules were drawn up between 1929 and 1933, and the were adopted by the League of Nations in 1934. They were approved with a few amendments in 1955 at the first United Nations Congress on Crime Prevention and the Treatment of Offenders. This Congress was held thanks in part to the representations made to the UN Secretary-General by President Marc Ancel, a member of the IPPF, and thanks in part to an IPPF revision of the rules.

It is more than half a century since the work was begun, and with the benefit of hindsight one can but admire the vision of its instigators, which was completely out of tune with current events and the state of humanity at the time.

For the first time in criminology, a universal set of rules was published that was based by its creators on declarations and instruments in the field of human rights. This approach led them to produce a body of rules, a full and consistent list of principles to regulate relations between the state and a specific class of citizen, the detainee. We have seen that the idea of a body of minimum rules augured well for the future. At the international level, the United Nations used it to adopt a code of conduct on the implementation of law, and the celebrated Beijing Rules on the application of penal law and the administration of penal justice for minors. At the regional level, the link is clearer still when we remember the 1973 Body of Minimum Rules for the Treatment of Detainees, the European Penitentiary Rules of 1987, which were adopted by the Council of Europe, and the Declaration on the Police, annexed to Resolution 390/1979 of its Parliamentary Assembly.

It can never be stressed enough that the instrument adopted in 1955 is a body of minimum rules on the treatment of detainees. The adjective minimum means the rules cannot be waived, whatever the circumstances, whoever the people involved, or whatever the political regime. Nowhere in the world can a state worthy of the name provide conditions of detention inferior to those recommended by the body of rules. Here again, the link between the minimum rules and the declarations and instruments which safeguard human rights is evinced.

These rules are also the first use in an international legal instrument of the idea of “the treatment of detainees”. This idea has an immediate dual meaning, which is a little ambiguous. First, “treatment” means how a person is treated, in terms of avoiding ill-treatment or inhuman or degrading treatment. Here “treatment” entails rules on the cleanliness of prisons, ensuring the physical and mental health of detainees, a ban on cruelty, the abolition of torture, and a ban on abuses of power. The idea is thus constitutional and forms one of the fundamental safeguards of human rights and basic freedoms. It applies all detainees of whatever status, whether in pre-trial custody, awaiting extradition, or simply held in police custody.

“Treatment” also means the psychological and social guidance of detainees, or resocialization. This is a legal idea. It is the basis of the penitentiary system, and applies only to detainees serving a sentence. This dual meaning or ambiguity was deliberately retained from the outset of the work of the IPPC and the IPPF. It is still present in the international legal instruments in the penal field. The body of rules on the treatment of detainees specifies, on both the legal and constitutional level, the standards which must apply to modern penitentiary systems, and that is has helped to improve modern prison life. In a new and broader context, detainees have been guaranteed both their human rights and a penitentiary system with positive content and objectives in resocializing them, as well as the more traditional aims of punishing crime and criminals.

In short, the body of minimum rules on the treatment of detainees covers both the “law on detainees”, or human rights, and “prison law”.

The IPPF has not rested on its laurels. With the same dual objective of safeguarding human rights and improving treatment under the penal system, the Foundation, with equal success, drew up a body of minimum rules on non-custodial treatment. The Foundation was also behind the Resolution adopted by the Eight United Nations Congress on Crime Prevention and the Treatment of Offenders in Havana, Cuba, on 7 November 1990. This resolution became known as the “Tokyo Rules”, or United Nations Minimum Rules on Non-Custodial Measures. Moreover, the final recital of the preamble to the Resolution refers expressly to the IPPF “for its part in preparing” the instrument.

The starting point for the whole undertaking was Resolution 16 of the Seventh United Nations Congress on Crime Prevention and the Treatment of Offenders, entitled “Reducing the Numbers of Detainees, Alternative Solutions to Detention, and the Social Reintegration of Offenders”, which states, “when alternative solutions to detention are applied, legal and judiciary guarantees must be observed in their application, administration and control”. Albeit implicitly, the Resolution refers to non-custodial treatment in both the legal and constitutional sense.

This duality was food for thought for the IPPF, and at the 1987 Quinquennial International at Poitiers, France, work began on drawing up a set of minimum rules for non-custodial treatment. The body of rules was completed in 1988 at Groningen, Netherlands, and given to the United Nations as a contribution to the Havana Congress. On the basis of its long experience of producing minimum rules with universal application, the IPPF concluded that the following principles must apply:

1. When working at the international level, it is wrong to think only of the needs of developed countries, but due account must also be taken of the needs of and realities in the developing countries. In short, the bar must not be placed too high, nor must there be too much detail, nor is it enough to just produce a list of the achievements of developed countries. The principles must be applicable in all countries, so as to heed the bitter lessons learnt from minimum rules on the treatment of detainees. From 1955 to 1990, developing countries repeatedly avow that whole sections of the body of rules could not be applied in their countries, not for lack of political will, nor because they were incompatible with their legal institutions. Instead, the developing countries asserted that because of the lack of human, technical, and financial resources, the standards were impossibly high. There is thus a need for caution and modesty; the result must of course be rich enough to be stimulating and attractive, but also vague enough to be applicable everywhere in the world.

2. With the considerable progress made in the development of non-custodial sanctions, minimum rules must refer to areas where ideas are constantly being developed. The rules must therefore be seen as a dynamic strategy, rather than a detailed description of a model system. They are a reflection of generally accepted modern thinking, and they open the way to reform. They do not merely govern current practice. In short, the minimum rules provide a stimulus, and support and encourage progressive thinking, insofar as it accords with principles of safeguarding human dignity and with the inherent general aims of those principles.

3. The authors of minimum rules must take care to ensure the equal treatment of all offenders before the law. The requirement for equal treatment, or non-discrimination, must be based on realistic non-theoretical objectives, and the equality in question must be more actual than formal. Any other approach would exclude at a stroke the individual tailoring of sanctions and their application.

Having established these broad principles, the IPPF still needed to establish the scope of the minimum rules on non-custodial treatment. The IPPF also needed to define the very different criminal sanctions to which the rules are likely to apply, in view of the many and various legal systems in the world.

For the IPPF, non-custodial sanctions involving treatment imply the exercise by a competent authority of its power of restraint and surveillance, based on a legal ruling by a criminal court. In other words, the important factors are:

1) An order by a judge in a criminal case to act or not to act without loss of liberty, which is imposed on the offender with special constraints restricting his freedom of expression, action or movement in society; and

2) The use of the power of restraint or surveillance arising from the judge’s order.

What is the scope in concrete terms of the minimum rules on non-custodial sentences? The IPPF has identified four areas of application:

1) Surveillance or supervision of the whole behaviour of the offender in society, in general terms, and the offer of assistance to the offender during the (re)socialization process;

2) Restrictions on the offender’s freedom of movement or freedom to travel, with permanent, periodic or impromptu checks, or an obligation to report, or house arrest, or an obligation to report periodically to an authority, or finally, an obligation to undergo psychiatric or social treatment;

3) Restrictions on the freedom of action of the offender, with an obligation to do certain work, carry out a certain task, or to follow a certain course of training;

4) Checks on the payment of a fine or compensation, and the setting of limits to the availability of the income or assets of the offender.

Finally, the IPPF has submitted a number of concrete proposals to the UN on the minimum rules on non-custodial treatment. These proposals further illustrate the pluralist approach adopted by the IPPF with regard to criminal policy.

1. Informing the Public Opinion of the Aims and Objectives of Non-Custodial Treatment

The success of non-custodial treatment can only be successful if the population within which the treatment is given understands its aims and objectives. The population does not possess an innate awareness or understanding. The authorities must therefore apply a forceful and balances policy. At all costs, the population must understand that non-custodial treatment is still primarily a sanction of an offence, i.e. a punishment.

2. Action on the Non-Custodial Environment Itself

A non-custodial treatment environment can be as unhealthy to the offender as prison is to the prisoner. The authorities ordering non-custodial treatment must therefore act on the environment as much as on the offender. That involves preparing those who will have to live with the offender to accept him, and possibly to cooperate with his efforts and with the treatment itself, so as to enable the offender to live a crime-free life.

3. Reducing or Removing the Stigmatizing Effect of Non-Custodial Sanctions

Non-custodial sanctions and the non-custodial environment are still a punishment, which may be deeply resented in social and psychological terms. However, the punitive effect, particularly the extra-legal effect, must not be too great. When an offender remains free and in permanent contact with the population while a sanction is being carried out, the hostility she may encounter and the greater likelihood of stigmatization may undermine the treatment. This stigmatizing effect must be avoided through professional secrecy, and by restricting as far as possible the publishing of reports or information on the offender, the crime, and the measures being applied. Privacy must be protected when the treatment is non-custodial.

4. Training of Supervisors in Non-Custodial Treatment and the Role of Volunteers

In non-custodial treatment, guidance and surveillance are primarily a matter for professional social workers; the minimum rules are not intended solely to give rights to those under the jurisdiction of a court, but also to place obligations upon enforcement officers. These officers must be competent and well-trained if they are to provide human qualities as well as technical and professional ones to those under their care. In non-custodial treatment as much as in prison, interpersonal relationships are of paramount importance. The situation becomes counterproductive when you have officers who are obsessed by methods and techniques working with offenders who are caught up in a web of dehumanizing relationships. As a result, attractive though it might seem, great caution must apply to the use of volunteers in non-custodial treatment. The volunteer must never be left to his own devices by the authorities, and he must himself be properly trained before he begins the work. Good will and commitment alone carry too great a risk of error or misjudgement and, therefore, of failure of the treatment.

5. Motivation of Judicial Decisions and Remedies at Law

Orders for non-custodial treatment, or to increase the severity of the regime during treatment, or to revoke a prison sentence must be given by a judicial authority or by an administrative authority provided that it respects the process of law. In other words, the decision must be legally motivated, subject to appeal, and must specify how it is to be implemented. Only in that way can a decision safeguard human rights and thus be democratically acceptable under whatever legal system.

The IPPF has a wide variety of policies that it would want to see adopted in the area of non-custodial treatment. However, reviewing these specific policies is unnecessary, since the general treatment of offenders – our primary concern and that of the IPPF – have both a legal and constitutional facet.

Ignoring national conditions, such a criminal policy must be based on carefully supported exploratory studies and work in comparative criminal law. Without these aspects the criminal policy would be more an exercise in tight-rope walking than a documented scientific approach. In the ten years before it produces its proposals for a set of minimum rules, the IPPF had already turned its attention to three areas:

A) community service as an alternative to imprisonment, which was examined at Coimbra, Portugal;
B) sanctions for economic crime, which were studied at Kristiansand, Norway, in 1983; and
C) criminal records and rehabilitation, which were studied at Neuchâtel, Switzerland, in 1979.

5.1. COMMUNITY SERVICE, OR WORK FOR THE COMMON GOOD

For several decades, the general consensus has been that community service is the most attractive and potentially successful of the alternatives to imprisonment. Surprisingly, until 1986 community service had received only the briefest mention in general criminal law studies dealing with sanctions or different national legal systems. Tak and Van Kalmthout´s work was not published until 1988. To the credit of the IPPF, the Coimbra Symposium dit pioneer work in examining the systems of Germany, the United States, Britain, Australia, France, the Netherlands, New Zealand and Portugal, among others. The Symposium examined the results these systems produced and the problems they encountered.

The great merit of the Coimbra Symposium was that it did not seek to conceal the problems faced by national legislators wishing to introduce community service into their penal codes, by judges wishing to pass community service sentences, or by administrations wishing to implement them. Such difficulties were sometimes constitutional, as in Italy, or conflicted with the ILO ban on forced labour, or with international instruments to safeguard human rights. Then there were the legal problems connected with the need to obtain the offender’s assent, the nature and duration of the work, the option of withdrawing community service from those who are obstructive or deliberately do unsatisfactory work. Last but not least, there are the practical difficulties of setting up and running appropriate administrative structures and services, the lack of appropriate work for offenders to do, reluctance or opposition of the professional interests involved, and the responsibility of the state for damage caused to third parties during the carrying-out of community service.
5.2. SANCTIONS FOR ECONOMIC CRIME

The symposium at Kristiansand, Norway, on sanctions for economic or business offenses, raised issues almost directly related to community service. The minutes of the symposium devote much space to non-custodial sanctions, including publication of the judgement, prohibition to practice, supervision by a higher authority, closing-down of business, compulsory compensation, confiscation, and, of course, community service. Such sanctions are gradually moving the law on economic crime away from conventional criminal law, because these sanctions are increasingly applied not to the offending individual as such. Instead these sanctions are often applied to the legal entity and the corporation, with the criminal responsibility arising out of the actions committed by a third party.

Here again, the IPPF did pioneering work. True, a larger number of studies preceded their work, including some on the comparative law of business crime and penal law on economic crime. However, the IPPF was the first organization at the international level to devote its exclusive attention to the neglected question of sanctions for economic crime.

5.3. CRIMINAL RECORDS AND REHABILITATION

The Neuchâtel Symposium on Criminal Records and Rehabilitation is another pertinent IPPF study. Whatever the judicial nature of an entry in a person’s criminal record – which different legal systems may treat as a sentence, a judicial measure or even an institution sui generis – the entry’s existence is perceived by the offender as a punishment. This punishment is all the more stigmatizing, because, depending on the legal system, its effects are not merely legal. They may last long after the sentence has been served and the offender has paid his debt to society. At the same time, a criminal record is a significant obstacle to the social reintegration of the offender, and the most basic sense of justice would call for its abandonment. Often, legal systems provide an avenue for the criminal record to be expunged after a given period of time. However, the offenders opportunities for rehabilitation must be maximized during the period when it still exists, in both his own interests and those of society. In short, it is paradoxical that the criminal record carries virtually no disadvantage for the offender while he remains in detention, but that it becomes a major obstacle to resocialization after his release, when he has either served his sentence in full or behaved well enough during detention to merit release on parole. The situation is both paradoxical and unjust, and it has been criticized by the IPPF as by the IPPC before it, when it dealt with the same topic almost thirty years earlier in 1950 at its swan song Twelfth International Congress before it gave way to the IPPF.

Conclusion

Criminal policy is a long-term undertaking, which can only be seen in the long term. It is therefore quite normal that in the more or less distant future, legislators, private criminal lawyers, and learned criminal law societies or associations will tackle these topics and question the results, however good and definitive they may appear.

In criminal policy, nothing is ever settled more than provisionally, and there is no need for war, revolution or a change of system to adapt penal institutions to new social imperatives. A good code of criminal law, unlike a constitution, is a code you change!

* Source : P.H. Bolle, IPPF: activities of the international penal and penitentiary foundation, in: M.C. Bassiouni (Ed.), The Contributions of Specialized Institutes and Non-Governmental Organizations to the United Nations Criminal Justice Program, 295-304, © 1995 Kluwer Law International, printed in the Netherlands.
Complete references may be found in this article.