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REALISING INTEGRATIONENAR policy seminar on migration, integration, social

inclusion and anti-discrimination

CRIMINAL JUSTICE AND POLICINGChibo Onyeji

President of the International Association for Integrative Action (IAIA)Substitute ENAR Board Member for Austria

Thon Hotel Brussels City Centre Brussels – 1 and 2 March 2007

Seminar organised in cooperation with the European Women’s Lobby, CCME (Churches' Commission for Migrants in Europe), ECRE (European Council on Refugees and Exiles), December 18, EAPN (European Anti Poverty

Network), SOLIDAR, PICUM (Platform for International Cooperation on Undocumented Migrants), MPG (Migration Policy Group), Caritas Europa and in media cooperation with Euractiv.

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OUTLINE

• 0. INTRODUCTION

• 1. SECTORS OF THE CRIMINAL JUSTICE SYSTEM

• 2. AUSTRIA: POLICING AND CRIMINAL JUSTICE

• 3. CONCLUDING REMARKS

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0. INTRODUCTION

• Outline major elements of the CJS based on UN and EU standards and norms for crime prevention, criminal justice and policing

• Provide insight into the mechanics of the CJS, system exerts significant, perhaps decisive, influence on some of the objectives of this seminar; objectives that this network and its NGO membership care very much about: migration, integration, justice, security, etc.

• Elements of the CJS are highly interconnected and interactive

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1.0. SECTORS OF THE CJS

• 1.1. POLICING

• 1.2. ACCESS TO JUSTICE

• 1.3. PRISON SYSTEM

• 1.4. CROSS-CUTTING ISSUES

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1.1.0. POLICING

• Public Safety and Police Service Delivery

• Integrity and Accountability of the Police

• Crime Investigation

• Police Information and Intelligence Systems

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1.1.1. POLICING:public safety & police service delivery

• Under Article 3 of the Model Police Act (MPA), (DRAFT, 26 January 2006), a law enforcement authority has a duty to:– Protect life, property and other internationally recognized rights;– Prevent, detect, and investigate criminal offences, misdemeanours

and other contraventions under the applicable law;– Carry out court orders;– Direct and supervise traffic on public roads;– Seize items as required in accordance with the Applicable law;– Monitor large public gatherings;– Assist in civil emergencies;– Protect designated individuals, premises, facilities, and areas;– Cooperate with and provide assistance to other legal authorities– Maintain integrity and confidentiality of required information and

personal data collected in the performance of its duties;– Carry out any other duties prescribed by the Applicable law

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1.1.2. POLICING:INTEGRITY & ACCOUNTABILITY OF THE POLICE

• Generally, majority of officers are committed to honourable and competent public service and still more will be, given right institutional support and training; but there will always be bad eggs

• The way policing is delivered depends on prevailing political and cultural doctrines, social infrastructure, and local tradition

• In some countries the police are direct instruments of government policy, in others they are more independent

• Police everywhere are given extensive powers to enforce the law

• Police powers are designed to protect the fundamental liberties and rights of society, but the delegation of the same powers also provides a potential for their severe abuse

• Often there are mechanisms for monitoring police conduct

• Police officers may be held accountable in different ways, .eg.:– In management or business terms for performance & productivity– For the way they exercised the powers entrusted to them

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1.1.3. POLICING:CRIME INVESTIGATION

an integral part of the criminal justice system

• CI is the process of identifying crime perpetrators or intended crime perpetrators through the gathering of facts or evidence

• CI involves assessing whether a crime has been committed in the first place

• CI can be: reactive or proactive (irrespective of legal tradition)

• CI is managed by two basic approaches: Investigating judge (civil law); Police (common law); many variations within both basic systems

• A fair and effective criminal justice system builds public confidence and encourages respect for law and order

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1.1.4. POLICING:POLICE INFORMATION AND INTEL SYSTEMS

• “Information”and “Intelligence”are often used interchangeably• Intelligence is assessed, significant information designated for action”• Information is transformed into intelligence through analysis• Criminal intelligence is a law enforcement strategy that seeks to (i) identify

common threads that link clues, (ii) record habits of prominent criminals, (iii) cultivate special relationships with people in the criminal underworld who provide inside information

• Intellegence techniques and methodologies are getting more sophisticated• Strategically and tatically, intelligence is now available that can be used to

make police decision-making more acurate and easier to justify

• Processing info: evaluate, analyze, disseminate (to those who need to know)

• Components of Intelligence system:– Gathering of information about criminals– Storage of fingerprints and/or DNA– Use of cover investigation techniques, including informants

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1.2.0. ACCESS TO JUSTICE

• The Courts

• The Judiciary

• The Prosecution Service

• Legal Defence and Legal Aid

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1.2.1. ACCESS TO JUSTICE:The Courts

• A functioning court system is integral to a functioning criminal justice system.

• The separation of powers principle views the judiciary as a separate and independent arm of government

• The management of the courts must be efficient and effective so that the criminal caseload can be adjudicated fairly, appropriately, and promptly

• A delicate balance must be struck between alleviating judicial officers of unnecessary administrative duties on the one hand, and avoiding the risk of interfering with the independence of the judiciary on the other

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1.2.2. ACCESS TO JUSTICE:The Judiciary: Independence, Impartiality, Integrity

• Common and civil law systems differ in conceptualisation of judiciary • Common law systems: (1) the judiciary has traditionally

enjoyed significant power and independence, (2) judges typically have security of tenure, and considerable autonomy over their budgets and internal governance. Political appointment of judges

• Civil law systems: the judiciary has not been necessarily viewed as a separate arm of government, but rather placed under the governance of a “judicial council”, including the Head of  State and the Minister of Justice. Career judges

• In recent decades, however, common law and civil law systems have evolved toward increased commonality in the conceptualisation of the institution of the judiciary

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1.2.3. ACCESS TO JUSTICE:The Prosecution Service

• Public Prosecutors play a unique role in criminal cases

• Public Prosecutors appear on behalf of govt as the representatives of the people rather than an individual victim

• Public Prosecutors have broader obligation to uphold the rule of law, with an attendant ethical and professional duty to ensure the accused receives a fair trial

• Where the Prosecution Service fails to fulfil its obligations, miscarriages of justice result ranging from malicious prosecutions to wrongful convictions

• Miscarriage of justice damages the integrity of the justice system and violates the public’s trust

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1.2.4. ACCESS TO JUSTICE:Legal Defence and Legal Aid

• Access to justice is fundamental to the protection of human rights as is evidenced in numerous human rights instruments

• UDHR enshrines key principles of equality before the law: presumption of innocence, right to fair and public hearing by an independent and impartial tribunal, along with all the guarantees necessary for the defence of anyone charged with a penal offence

• Article 14 of the International Covenant on Civil and Political Rights grants, among the minimum guarantees:

– the right to “defend [oneself] in person or through legal assistance of [one’s] own choosing;

– to be informed, if [one] does not have legal assistance, of this right; and to have legal assistance assigned to [one], in any case where the interests of justice so require, and without payment”

– the right to“have adequate time and facilities for the preparation of [one’s] defence and to communicate with counsel of [one’s] own choosing.”

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1.3.0. THE PRISON SYSTEMimprisonment can be regarded as the final stage of the criminal justice process

• How the CJS deals with offenders determines the size of the prison population

• The prison population has a significant impact on the way prisons are managed

• Efficient management and humane prison conditions depend on the prison authorities, and on pressures from politicians and the public

• Where govt adopts a punitive approach to crime, and fails to address the underlying factors that lead to criminal behaviour, prisons end up as places where members of the most disadvantaged and vulnerable groups of society gather in large numbers

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• Social Reintegration:–Support should be given to offenders during re-entry into society following imprisonment; broadly, includes period from prosecution to release to post-release support

• Alternative to Incarceration: – Growing recognition that imprisonment does not achieve some of

its most stated objectives; is harmful to offenders and family

1.4.0. CROSS-CUTTING ISSUES

• Criminal Justice Information; Juvenile Justice

• Victims and Witnesses; International Cooperation

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2.1. AUSTRIA: The National Police • MISSION: maintain public safety, fight crime, and assist civil society in various

ways, including crime prevention

• STRUCTURE & ORGANIZATION: – reorganized in 2005, consolidating the former law enforcement bodies

(public security Constabulary, Criminal Investigation Service and Gendarmerie) into a single unit

– Approx. 1000 police stations – Approx. 20 000 total police staff as of 2006

• EDUCATION/TRAINING:– 10 Training Centres for Security Forces– Basic training, a 24-month programme– Continuing training offered according to needs and requirements of service

• OVERSIGHT:– The Federal Bureau for Internal Affair (BIA); autonomous agency

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2.2. AUSTRIA: The National Police

• ELITE POLICING UNIT: the Cobra Special Forces– Combating terrorism, resolving hostage situations, arresting

armed criminals, etc.– CSF is headed by the Commander-in-Chief– Police officers can apply for admission into the CSF– Initial screening tests for medical, psychological, and physical

prerequisites– six-month basic training (tactics, marksmanship, sports, driving

skills, combat etc.– Possible further, special training e.g. parachuting, sharpshooting,

scuba diving

• PRISON GUARDS: Approx. 3 000; regular training in (1) School of Prison Guards, (2) Penal System’s Centre for Continuing Education, (3) external education bodies

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2.3. AUSTRIA: Fund’l Principles of the Criminal Procedure

• The charge principle: Prosecutor triggers criminal procedure

• The legality principle: State Prosecutor duty bound to pros• .• The public principle: Public may not be excluded from hearing

• Procedure carried out before a legally appointed judge

• Participation of public in the criminal justice (jury and juror)

• Establishment of the truth principle: court must clarify issues

• Independent Judgment Principle: judge forms opinion independently without outside interference

The fair trial principle and the principle of the presumption ofinnocence are guaranteed; the accused must be acquitted if somedoubts persist

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2.4. AUSTRIA: Concerns of the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT)

• A definition of “torture” as provided by Art. 1 of CAT not yet included in Penal Code of Austria

• Lack of prompt investigation of cases of torture and ill-treatment committed by law enforcement officials

• Restrictions on the right of an arrested person to have counsel present during interrogation if “there is some evidence to suggest that the presence of counsel would jeopardize further investigative steps”

• Inadequacy of the legal aid system

• Conditions of detention of juveniles; particularly, persons under 18 are not always separated from adults

• Attitudes of racism and intolerance towards foreigners manifested by law enforcement officials: verbal abuse of Roma & people of African descent

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2.5. AUSTRIA: CRIMINAL JUSTICE SCANDALS & POLICE MISCONDUCT

• Fred Onduri (1996): Kenya • Kureng Akue (1997): Sudan• Sharif Hussein Ahmed (†1997): Somalia • Dr. C. (1998): Nigeria • Mohammed Ali Visila (1999): African-French • Raymond Ayodeji (1999): Nigeria• Marcus Omofuma (†1999; 2002)[25]: Nigeria • Richard Ibekwe (†2000): Nigeria• Johnson Opara (†2001): Nigeria• Seibani Wague (†2003; 2005)[33]: Mauritania • Edwin Ndupu (†2004): Nigeria• Emmanuel Chukwujekwu (1999;2005): Nigeria • Yankuba Cessay (†2005)[18]: Gambia

• Rainhard Fredrich (2006) : Austria• “Kleine Fredi” Austria

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3.0. CONCLUDING REMARKS• There is plenty of scope for improving the quality of criminal

justice and policing delivery in Austria. Double standards

• The Fundamental Rights of 3RD country nationals in Austria especially those of African descent are often (brutally) abused

• Cases of torture and ill-treatment committed by law enforcement officials are not promptly investigated.

• The Advocacy role of the European Network Against Racism (ENAR) remains very relevant

• …effective criminal justice systems can only be developed based on the rule of law and…the rule of law itself requires the protection of effective criminal justice measures.

Resolution 2005/21, UN Economic and Social Council

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4.0. REFERENCES• Nowak, Manfred, Constanze Spritz, Birgit Weyss, and Alexander Lubich. 2005.

Report on the Situation of Fundamental Rights in Austria in 2005. CFR-CDF/AT/2005.

• Oehlboeck, Johannes and Immanuel Gerstner. 2005. The Austrian Legal System

and Laws: a Brief Overview. http://www.nyulawglobal.org/globalex/Austria.htm (Accessed: 18 January 2007).

• Onyeji, Chibo. 2006. ENAR Shadow Report 2005: Racism In Austria. European Network Against Racism. http://www.enar-eu.org/en/national/austria/Austria_2005.pdf

• OSCE. 2007. Policing Profiles of Participating Countries: Austria. http://polis.osce.org/countries/details?item_id=9

• UN CAT. 2005. Consideration of Reports Submitted By States Parties Under Article 19 of the Convention: Conclusions and recommendations of the Committee against Torture (35th Session): AUSTRIA. (CAT/C/AUT/CO/3).

• United Nations Office on Drugs and Crime. 2006. Criminal Justice Assessment Toolkit, Vienna. United Nations New York.

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THANK YOU!!!