The primary international instrument covering sanctions other than
imprisonment imposed during the administration of criminal justice is the United Nations
Standard Minimum Rules for Non-Custodial Measures, known as the Tokyo Rules. These Rules
were adopted by the UN General Assembly under resolution 45/110 of 14 December 1990.
Rules to govern community-based sanctions were developed because of the
increasing use of such sanctions, in a wide variety of cultures and legislation around the
world. These sanctions allow offenders to remain with their families and communities and
to keep any employment they might have. However, offenders undergoing such sanctions are
still to an extent under the control of authorities. They may be subject to specific
restrictions and conditions and information about their actions and behaviour may be
collected by the authorities. Non-compliance with the conditions imposed may lead to
serious consequences for the offender, such as imprisonment. Therefore, safeguards are
needed to prevent the abuse of the human rights and dignity of those undergoing such
sanctions.
The Rules provide legal safeguards to ensure that non-custodial
penalties are used fairly, within a clear legal framework, in a way which ensures that
offenders' rights are protected and they have recourse to a formal complaint system if
they feel their rights have been infringed at any stage. When an offender is asked to
consent to undergo a particular penalty before or instead of a formal trial process, the
offender should be given clear information about the consequences of refusing. Private
information about the offender should be kept confidential.
According to the Commentary
"By their nature, non-custodial measures call for more discretion
and flexibility to be exercised by the competent authority than do custodial measures.
These possibilities of flexibility and discretion, while welcome, can lead to arbitrary
decisions and abuses of basic rights. In order to avoid such a possibility... (the Rules)
underline the fact that discretion should be exercised in accordance with lawful
principles".
The Council of Europe produced its own set of rules on "community
sanctions and measures" which was adopted by the Council of Ministers in 1992. The
explanatory memorandum to the European Rules states that it is necessary to ensure
"that the introduction of new technologies and new developments in
matters of supervision and control, as well as pressure for greater cost-effectiveness, do
not compromise the offender's rights." (Council of Europe 1994) [9]
The Council of Europe, in the explanatory memorandum, also takes the
opportunity to set out the reasons why penal policy should move in the direction of
alternatives to prison. Alternatives avoid social exclusion. They provide more
realistically for the protection of society. They permit the offender to be treated with
"respect as a responsible human being".
"In choosing to implement the sanction in the community the traditional aims of
penal reaction are linked to the aim of social reconciliation." (Council Of Europe
1994)
