Beruflich Dokumente
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LAW REVIEW
LAW REVIEW
Journal of legal and academic research, theory and practice
2015 5 (60)
2016 5 (60)
Ulaanbaatar 2016
Ulaanbaatar 2016
EDITORIAL BOARD
J.Amarsanaa Academician
B.Amarsanaa (LL.D)
D.Bayarsaikhan (Ph.D)
O.Munkhsaikhan (LL.D)
D.Sunjid (Dr.jur)
Ts.Tsogt Judge of the Administrative Appellate Court
B.Urantsetseg (Ph.D)
S.Enkhtsetseg Director of National Legal Institute
Kh.Erdem-Undrakh (Dr.jur)
A.Erdenetsogt (Ph.D)
Editor-in-Chief
S.Enkhtsetseg
Executive Editorin-Chief
Kh.Erdem-Undrakh
Acting Assistant Editor
B.Gonchigsumlaa
Designed by
Z.Erdenetugs
INTERNATIONAL EXPERIENCE
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Before Creating a Law
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Before Creating a Law
subjects: Civil Law including Family Law primary emphasis on the principle
and Labour Law, Commercial Law and of independence. The fundamental
Criminal Law) and subsequent oral exams requirement for the formation of an
before the five-member commission (each independent advocacy is a creation of an
of the aforementioned law areas plus autonomous Bar Association ensuing from
Constitutional and Administrative Law and a legislative act, i.e. not merely on the basis
Regulations of the Advocacy Profession). of a legislative act, whereby the autonomy
The head of the Examination Commission (i.e. self-governance) must be complete
is an advocate, but the Commission is in the sense that all competences of the
also composed of judges, academics, public-law nature i.e. those that enable
etc. Each member of the Commission the complete and integral management of
examines an area of law. the advocate profession are delegated
It is important that the attorneys- to the Bar Association.
at-law keep up with the changing legal Any interference of the government
and business environment. Therefore, in the autonomous operation of the
the role of the Bar Association, as advocacy is an interference in the
the organisation for the advanced independence and as such a dangerous
education of its members is important. intervention in the very mission of the
Do the Czech advocates need to advocacy, thereby also in the principles
participate in obligatory training of democratic justice. We will surely agree
programs? that advocacy is undoubtedly a part of the
As already mentioned, the Czech justice in a broader sense.
advocacy ensures mandatory training of It is essential to realize that to
the legal trainees (Konzipient). During my the independence is linked another
tenure at the head of the Bar Association, fundamental principle of the advocate
we tried to enact compulsory education profession, and this is the duty of
of advocates in the range of about 20 confidentiality. The advocacy would not
hrs. per year, but the legislative proposal be able to protect this duty if e.g. the
did not pass the Czech Parliament. The government interfered in the independence
truth is that today we are coming back to of advocacy. Therefore, for example,
this question again and the need for the the CBA speaks loudly today about the
compulsory education of advocates is need to professionalise the control and
voiced louder and louder. On the other disciplinary functions although solely
hand, I may mention perhaps that under within the framework of the autonomy of
my leadership two permanent training the advocacy when we at present see
centres were established, in Prague and the signals of attacks by government
Brno, whereby their utilization rate and authorities against the exercise of the
the interest of responsible advocates are control and disciplinary competences
enormous. by the Bar Association. There is no
The 25 years following the doubt that any intrusion by a state
fall of communism in Mongolia official in the control powers vis--vis the
yielded many positive results, as advocates would be totally unacceptable
well as many new challenges. One interference with their independence, and,
of the biggest challenges is the at the same time, a manifest breach of the
independence of the judiciary. The duty of confidentiality. In this context, it is
lack of strong independent law firms necessary to constantly remind that the
further underscores the importance duty of confidentiality was not established
of this challenge. What would be your to cover the back of the advocate but
advice for the Mongolian lawyers in virtually exclusively in order to protect the
this regard? interests of the client.
The independence of advocate And what I wish the Mongolian
profession is an essential prerequisite advocacy and the Mongolian advocates?
for the fulfilment of its mission. That A single self-governing organization
is why the Act on Advocacy puts the compulsorily uniting independent,
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disciplinary liable and adequately insured This interview was prepared by Dr.
advocates. Uyanga Delger, legal advisor in Intellectual
Mr. Jirousek, thank you for the Property Law
interview!
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Legal Thoughts: Reflection
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medals;
Grant pardons;
Decide matters related to granting
and withdrawing Mongolian citizenship
and granting asylum;
Head the National Security
Council of Mongolia;
Declare general or partial
conscription;
Declare a state of emergency or
a state of war in any portion or throughout
the entirety of the national territory in
an emergency situation as described
in paragraphs 2 and 3 of Article 25 of
the Constitution of Mongolia, where
such circumstances of urgency exist
4. President. when Parliament is in recess, and to
The President of Mongolia possesses issue ordinances commencing military
and exercises the full rights and powers operations. The Parliament shall consider
as promulgated by the Constitution of within 7 days any such Presidential Decree
Mongolia, as follows: declaring a state of emergency or a state
The right to veto, either in part of war and shall approve or disapprove
or in its entirety, those laws and other it. If Parliament makes no decision
decisions that are adopted by Parliament. whatsoever within the prescribed time, the
The laws or decisions shall remain in Presidential Decree shall automatically be
force if two thirds of the members present void.
in the session of the Parliament override Serve as the Commander-in-
the Presidents veto; Chief of the armed forces of Mongolia.
Propose to Parliament the The president may address messages
nominations for appointment to the post of to Parliament and/or to the people. The
the Prime Minister, in consultation with the President may at his or her own discretion
majority party or parties in the Parliament attend sessions of Parliament and report
if none of them has majority of seats, on and submit proposals concerning vital
as well as to propose to Parliament the issues of domestic and foreign policies of
dissolution of the government; the country.
Instruct the government on ii. Substantive Laws
issues within scope of his authority. If In general, laws passed, other
the President issues a lawful decree, than the Constitution, are classified as
that decree shall become effective upon substantive law in Mongolia, and are
signature by the Prime Minister; divided into two categories; public law and
Represent the state with full private law. Private law regulates relations
powers in foreign relations and, in between equal parties, and public law
consultation with Parliament, to conclude regulates all disputes between a private
international treaties on behalf of citizen or group and a public body or
Mongolia; the government. The Civil Code is the
Appoint and recall ambassadors, core of private law in Mongolia, and the
diplomats, and representatives of Mongolia Criminal Code and Administrative General
to foreign countries in consultation with Law govern public law. Statutes are the
the Parliament; primary source of law in Mongolia; and as
Receive the credentials or recall of July 2016, 596 laws exist. Legislation
of heads of diplomatic missions of foreign may be enacted solely by Parliament
states to Mongolia; pursuant to its constitutional authority,
Confer state titles and higher by prescribed means and such that it
military ranks and award orders and becomes the law governing conduct within
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its scope. Members of the Parliament, laws. Presidential decrees must conform
the Government, and the President of to the rights granted by the Law on the
Mongolia may initiate a draft of a law in Presidency (also generally known as
accordance with Law on Legislation of Presidency Law). These rights were
Mongolia. originally promulgated in the Constitution,
In Mongolia, legal acts, in the and have been restated in the Law on the
broad sense of the word, may take any Presidency.5
number of forms, to include parliamentary v. Orders
resolutions, presidential decrees, cabinet 1. Overview
ministry resolutions, and ministry rules In Mongolia, orders can take
and orders. Parliamentary resolutions several forms, including Parliamentary
may regulate the following issues: resolutions, presidential decrees, cabinet
Government and other organizations. resolutions, and ministerial or agency
Parliamentary resolutions are most rules, procedures, and orders.6
frequently concerned which specific topics 1. Presidential Decree
for the implementation of a broad range of The Constitution of Mongolia
Government activities. specifically grants the President the
iii. Treaty and International Law authority to issue decrees; the Law on the
The status of international law in the Presidency further codifies the Presidents
Mongolian legal system was dramatically decree powers. The aim of both is to limit
transformed by the 1992 Constitution of the Presidents powers by requiring that all
Mongolia; as part of its transition since decrees must be in accordance with, and
1990 and commitment to the rule of law, not be in violation of, any of the Nations
Mongolia is a signatory or party to a laws.
number of international treaties that bind 2. Ordinances of Prime Ministers
the government to honor international and Ministerial Ordinances
standards and norms of law. The 1992 Executive power in Mongolia is
Constitution of Mongolia provides that the vested in the Government, which, in
international treaties to which Mongolia accordance with the limitations prescribed
is a party, shall become effective as by the Constitution, laws, and normative,
domestic legislation upon the entry into or regulatory, acts of Parliament, issues
force of the laws or on their ratification or resolutions and ordinances. Cabinet
accession. Mongolia shall not abide by any ministry resolutions have many forms
international treaty or other instruments and functions. In their simplest from they
incompatible with its Constitution.4 are a formality used to adopt decisions
International treaties to which by a higher level of the Government. For
Mongolia is party to are bilateral or example, the Government may issue
multilateral written agreements to be a resolution formally adopting a piece
regulated by international law. These of legislation which has already been
determine the rights and responsibilities voted on by Parliament. Resolutions can,
of Mongolia, the Parliament of Mongolia, however, also rise to the same legal status
the Government of Mongolia, as well as of regulations. If these resolutions and
single or multiple foreign countries their ordinances are incompatible with laws
governments or international organizations and regulations, the Government itself or
with regard to certain issues. Parliament has the constitutional power to
The term international treaties refers invalidate them.
to all interstate, intergovernmental, or All ministries and agencies have the
interdepartmental documents irrespective power to issue regulatory acts pursuant
of their form and appellation. 5
Overview of the Mongolian Legal System and Laws, Sourc-
iv. Emergency Executive Order es of Law, http://www.nyulawglobal.org/globalex/Mongolia_
The President is specifically Research.html#SourcesofLaw (last visited Jul. 21, 2016).
authorized to issue decrees in accordance 6
Overview of the Mongolian Legal System and Laws,
with the Constitution and Mongolian Sources of Law, http://www.nyulawglobal.org/globalex/Mon-
golia_Research.html#KeyElementsofModernMongolianLe-
4
Mong. const. art. X, 1-3 (1992). galSystem
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power under public law framed by issuing responsible to the citizens for the creation
administrative acts, administrative of guarantees for ensuring human rights
normative acts, and administrative and freedoms, to fight against violation of
contract/agreement. This law determined human rights and freedoms and to restore
the administrative legislation as related of infringed rights and also Article 48.1
part of the Constitution, Administrative states that Specialized courts such as
general law and other laws which pertain administrative courts may be formed.
to administrative activities. Under this constitutional regulation, the
Administrative General Law shall not first Administrative Procedure Law was
govern the below relations: enacted and also the first Administrative
- Activities of law drafting and courts were established in the capital city
legislative procedures; and 21 provinces. The main concepts and
- Procedure of international treaty principles of Administrative Procedure
acceptance and signature; Law was adopted from German law which
- Proceeding of the Constitutional is a strong representation of Romano-
Court and all level court for trial and Germanic legal tradition. After a decade
litigation of criminal, civil and administrative of practice of the Administrative Court of
cases; Mongolia, scholars and practitioners were
- Investigation procedure of cases, made an assessment and evaluation for
prosecutors control, and correctional the more developed procedure law and
service activities; court of administrative cases.
- Intelligence, national security, The purpose of the first Administrative
and all related activities for direct Procedure Law was to regulate the
implementation of state foreign policy; relations connected with the preliminary
- Procedures for political discussion decision making on administrative cases
and decisions. according to the complaints and claims
Administrative organizations in submitted by citizens and legal entities
Mongolia consist of: who have considered an administrative act
- Central and local organizations as illegal in order to protect their infringed
which implement the executive power of rights, and with the proceedings of
the state; administrative cases in the Administrative
- Non-Government agencies or Cases Courts.
other public law entities which have duties On this basis, the court is dedicated
to implement legislation and have the right to secure and protect the rights and
to issue orders for the public; freedoms of citizen and legal entity from
- Legal persons who transferred illegal administrative acts and unlawful
administrative duties based on action of Public administrative body.
administrative contracts or legislation; Thus, the Administrative Court of
- Executive bodies of state- Mongolia is an independent institution
owned or joint school, hospital, media, of the Judiciary power that protects the
communication, transportation, and lawful rights of citizen and legal entity
energy organizations for public service; from the unlawful action of the Public
Local self-managing organizations administrative body.9
and other organizations such that On the demands of rapidly developing
decisions and activities are sorted out society and the weaknesses of the first
by public law decisions and are thereby Administrative procedure law, a renewed
eligible to make a claim to administrative draft of Administrative Procedure Law
court. was enacted by Parliament in February
E. Administrative Procedure Law 04, 2016 and enforced from July 1, 2016.
The first Administrative Procedure The main purposes of this law are that
Law was enacted in 2002 and enforced till it will: regulate relation in relevance with
June 30, 2016. Legal basis of this law and
administrative court is stated on Article 19.1 9
The Administrative Court of Mongolia as a Protector of
of the Constitution as The State shall be Human rights, Erdenetsogt.A, Law review, National Legal
Institute, page 47, Series 55.
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(i) research, (ii) exploration, and (iii) locate and no integrated source to find
extraction. Exploration and extraction English translation of Mongolian law
activities for oil and unconventional oil exists.
are subject to licensing procedures under However, the National Legal Institute
the Petroleum Law while other activities, operates a web portal for free distribution
such as research and the storage and of all legislation in Mongolian language
transportation of petroleum, are subject to and updates makes in daily basis. The
the issuance of permissions or approvals Institute and the Government both
from the relevant authorities. Such regularly publish updated paper series of
permissions usually involve a simple laws.
approval process, whereas licenses Source in Mongolian language:
involve more complicated procedures www.legalinfor.mn.
whereby applicants must satisfy more Source in English language: The
rigorous requirements provided under user can find via Google search many
the relevant laws and regulations Mongolian laws in English, but the most
including the entry into of a production recent amendments could be missing.
sharing agreement until the Mongolian This author recommends that if someone
government. needs updated laws or opinions he/she
V. HOW TO FIND MONGOLIAN should contact odugerel@gmail.com at
LAWS the National Legal Institute.
A. Overview
Currently, free Mongolian legal
resources in English are still difficult to
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26
Implementation of Law, Efficiency and Issues
J.Oyuntungalag, LL.D, Chief Judge of the conducted in a rather informal way. These
Appellate Court for Civil Cases factors have contributed to increased
fraud crimes8, breach of confidential
relationships, and the abuse of legal
Introduction tools for unjust purposes. Poor quality
Mongolia is a developing country in management service has brought
which is making efforts to move from a potentially serious harm to society, through
centrally planned economy to a property- loss of trust in law and the marginalization
based open market economy.2 This of courts (nihilism) in the pursuit of pure
transition process began in the 1990s,3and advantage or of remedies for violated
since then, as a result of extensive rights. These bad effects on the legal
industrial and trade sector privatization, mentality of general public are a potential
Mongolian people have begun4to engage barrier to the development of a free and
in various business activities which their transparent economy. It is necessary to
educational background and former life provide an adequate system for protecting
style have not prepared them. citizens property rights, in order to close
Lack of knowledge and experience in the shutters on this bad scenery.
property management, in the commercial5, Trust law can help address these
social6 and personal7 spheres combine problems, as a flexible regulatory
with inadequate legal infrastructure to mechanism which applies to both the
create difficulties for the people. Moreover, structure of property management
in Mongolias young and developing and protection against malfeasance in
market, business and private affairs are following ways:
- As a general legal structure,9 trust
1
This is the first chapter of the master thesis written the au- law can extend or build upon existing
thor in Graduate School of Law of Nagoya University in
2007 legislation,10 by providing standards for
2
UndsenKhuuli [Constitution of Mongolia] (Mong.) determining the status of property held in
3
The new Constitution of Mongolia was adopted in 1992, law by one party in anothers interest;
which is followed by much legislation, particularly in the - Trust law can provide a set of
economic sector, including the new Civil Code 1994 and
2002. default provisions applicable to fiduciary
4
S. Narangerel Legal System of Mongolia 102 (Matthew Lin- relationships and the management of
ley et al. eds., Interpress. 2004), As before 1992 Mongolians property by another;
were allowed to have no private property, but only personal
property, such as cars and clothing. - Examples of trust law practice in
5
P. Tsenguun. Stock exchange, monetary policy, tax.2005 8
MongoliinTsagdaagiinErunkhiiGazriinStatistikSudak-
Liberal economy fund. (authors translation from Mongo- gaaniiHeltesiinStatistikMedee [Statistical data of Statistic
lian language) the only way to secure money of people is Survey of general department of Police] (2006) (From this
known as a saving and the most popular form of fundrais- statistic data fraud increased until 1997 and, although
ing of companies is loans from the banks. decreasing from 1998 to 2005 in quantity, in quality these
6
Various social, pension and other public benefit funds, types of crimes are getting more serious, as characterized
schools and hospitals are still state owned being heavy by a rise in the professionalism of the criminals, and in the
burden on the state budget and can not meet the public number of victims affected).
demand. So it is already decided (the Social sector privat- 9
Noomi Yoshihisa, Modern Trust Law in Japan [GendaiS-
ization program) to separate some of them from state man- intakuHou] 2 (2004)
agement. 10
Company Law, Civil Code, Law on Social Insurance,
7
For example, overseas remittance constitutes a majority Law on Issuing pension allowance and payment from the
of the income of beneficiary households in Mongolia but is social welfare funds, Law on the fees of the pension of the
losing value due to inflation, unproductive investment by personalized pension accounts are covering some areas of
agents and increased levels of fraud. common law trust law in Mongolia
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LAW REVIEW 2016 5(60)
other jurisdictions can contribute to the two elements of the trust are generally
improvement of the remedial system; considered to be essentially common
- As a comprehensive device law concepts, and not recognized in civil
external to the tradition of the Mongolian law jurisdictions (like Mongolia) due to
legal system, the study of trust law can incompatibility with the underlying legal
stimulate fresh thinking about property system.13 However, rules relating to the
law issues among Mongolian lawyers, management of anothers property and
policymakers and commentators. to relationships based on personal trust
At the same time, an incorrect can be a source of good examples for the
or incomplete understanding of trust formulation of legal regulations necessary
principles may give rise to problems to protect property rights in a system
such as the defrauding of creditors, the undergoing transition.
circumvention of laws prohibiting certain Chapter 1 will identify Civil Code
activities,11 or the unfair distortion of the concepts having similar characteristics to
fabric of existing law. the trusts of the common law, and identify
This paper will cover the standards the applicable scope of the trust concepts
applicable to trust relationships in the in this enquiry. Chapter 2 will compare
legal systems of the United States of ownership rights of the parties to a trust
America and Japan, for the purpose participants with ownership concepts
of identifying norms that may help in in the Civil Code of Mongolia, and will
the further development of the property identify the monitoring requirements for
relationship in Mongolia from a legal trust property, which can be useful tools
and economic point of view. The author for the identification identify and control of
has chosen these two jurisdictions as property in the hands of another. Chapter
a particular reference not only because 3 will concentrate on fiduciary duties of
of the size of their economies, but also the trustees and ways to enforce them,
because of the characteristics of their with particular attention to the core of
social and legal structure. Japan is a civil duties and responsibilities arising from the
law country which has more than 80 years fiduciary relationship and the justification
experience with trust regulation, and is of legal remedies for breach. The final
now in the process of reforming its own chapter will compare property remedial
law. The United States is a country having system of Mongolia and constructive
statutory trust regulation and successfully trust, to find ways to improve the current
developing trust structure in both of the remedial system of Mongolia.
social and commercial sphere. Chapter 1. Fundamental
The objective of the current thesis is principles, usages and types of trusts
not to suggest the transplantion of Anglo- Section 1.1. Description of trust
American trust law12 to Mongolia, but and its requirements
ultimately to explore ways of improving 1.1.a Trusts and other related
the civil remedial system by drawing regulations in Mongolian legislation.
upon constructive trusts concepts. The The eventual purpose of this thesis is
fundamentals common to all forms of to find proper ways to develop trust
trust, such as the concept of trust property concepts which can contribute to or
and fiduciary duty must be outlined first, in enable the development of measures
order to understand trust principles. These to support property management and
11
In Mongolia Non bank institutions are prohibited to deal 13
Adair Dyer, Recognition of Common Law Trusts and
saving and loan activities, but now they are taking saving Their Adoption in Civil Law Societies. Vanderbilt Journal
from the public under the name of the trust service. of Transnational Law. October,(1999) (idea of division of
12
AndreyA.Zdanov, Transplanting the Anglo-American ownership seemed irrelevant,and even dangerous, since
Trusts in Russian soil, Review of Central and Eastern Euro- some civil law systems had a comprehensive division of
pean Laws 31 (2006) 179-231 ownership as an absolute concept)
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Implementation of Law, Efficiency and Issues
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contract, but not property relationship, it the legal title is transferred to others
is assumed that no property right is given and fiduciary relationship, but it is not
to the beneficiary of this contract, whose independent contract. From the scholastic
counterpart in trusts relationship has such interpretation the transferor of the
rights. property is losing all his property right, so
Usufruct26 .Usufruct is defined he has only right on damage claim but not
in Civil Code of Mongolia as a right to property claim from the fiduciary, that is
possess and use others property with evidencing impossibility of the ownership
limits for earning property and benefit. separation29
The usufruct possessor is entitled on Agency30.According to the contract
the same right as the real owner except an agency is to do certain actions on
to dispose it through the comprehensive behalf of and at the expenses of a
transfer to third person. The usufruct principle and the principle should pay
possessor should take permission from for a service. It differs from trusts as an
the owner in case of pledge and rent of action undertaken by the agent is on the
the property. This is similar to the trusts in name of the principle. There is no transfer
sense of that it limits the owners right, but of the ownership right, although agent is
it is not the complete limit of the ownership acting for the benefit of others and holding
rights like trusts, because the usufruct the fiduciary duties like trustees, but he is
possessor has no right to dispose. entitled only on certain actions instructed
Transfer of the immovable property by the principle.
to the others administration27. This will Guardianship.31The article is also one
be attached only to the immoveable of the confusing articles of the Civil Code
subject to the hypothec. It is one type of and it does not stipulate directly that the
the measures to ensure the performance guardian has ownership rights and some
of the obligation and an alternative other property rights on the assets of the
method of selling property by auction and ward. But it is assumed that guardian is
established by the court on the request legally entitled on the property as article
of the obligation assignee with hypothec 485.2 stipulates that in case of death
claiming rights on the property. It is very of the guardian the successor of the
similar to trusts, since administrator has transferred property will have obligation
a right of ownership, such as right to to take care of the ward Here the
dispose and distribute benefits earned transferred property means the property
from the administration to the entitled on it transferred to the guardian from the ward
people according to the plan approved by for guardianship as the article 483.2
the court. But it is distinguished from the stipulates that in case of the contract
trusts as a short term structure and can be termination the transferred property
initiated only by the obligation assignee shall be returned to the ward. If the
who is not the owner of the property. successor of the guardian can receive the
Moreover after the complete performance transferred property, logically it means that
of the obligation the remained property the property is included into the guardians
should be returned to the owner of the will. Consequently, the guardian has a
property. legal title on the property like trustee in the
Fiducia28.It is also one way of trusts, but he is not entitled on disposition,
ensuring performance of obligation by because law requires the consent of the
transferring a legal title to an obligation
assignee. It is similar to the trust in that KhuuliZuinUndesniiTuv [National Legal Center],
29
30
Implementation of Law, Efficiency and Issues
ward for it. This provision is evidencing the trust form37 but the characteristic and
the sensitiveness of the civil law system in content of the trust relationship, as an
division of ownership rights. instrument to cause trustee to administer
However these above listed and dispose the property for the benefit of
relationships are having some elements others.
of the trusts, they can not be considered Basing on the opinions of the scholars
as trust relationship32 due to lack of one and definition of the legislations the author
or more of the following characteristics of compared the common characteristics of
the trusts. the trusts given by them38, the following
1.1.b Definition of the trust. There description is made for trusts:
is no strictly stated trust definition in Trust is a legal relationship where
common law, because its structure is very a person (trustee) to manage the others
clear and deceptively simple for common property (trust property) for special
law system. Thus Scott has stated that purpose (charitable or for the benefit of
the definition results from the rules, and the beneficiary)39. The main binding40
not the rules from the definition33 and he characteristics of the trust are following:
has mentioned that trust is understood in - Ownership and interests in related
two ways, such as broader and narrower property are separated between trustee
sense. In broader sense, trust is a fiduciary and beneficiary;
relationship including all like bailment, - Fiduciary duties of the trustee
executorships, guardianship and so on. in administration and disposition of trust
In narrower sense, the term is applied to property;
the definition of the Second Restatement - For benefit of other than legal
and he gave main characteristics of trusts, owner (trustee) of the property.
such as intentionally created fiduciary The composition of these 3 main
relationship, related to the property, and characteristics makes trusts distinct from
existence of equitable duties, benefit of other similar institutions, such as bailment,
another people34. agency, guardianship and others.
But the definitions is needed for Distinction of the trusts from other
giving general idea, namely for answering similar relationships41
question What is trust?35and for
distinguishing it from other concepts,
like bailment, and agency for civil lawyer.
Specially in statute based system of law
like Mongolia regulations begin from the
definition. Thus according to the Article
1 of the Trust Law of Japan36 trust is
a transfer and otherwise dispose of a 37
Trust form means how or by what document trust can
property right and cause another person be created
to administer or dispose the property for a 38
Stevan L. Schwarcz, Commercial Trusts as Business
specific purpose. This article did not give Organizations: An Invitation to Comparatists 43 Duke J.
Comp.&IntlL.321 (2003), Hayton and Marshall Commen-
tary and Case Law of Trusts and Equitable Remedies 1,
Donavan W.M.Waters, The Institution of the Trust in Civil
and Common Law 449 (1995), the Hague Convention on the
32
See table Distinction of the trusts from other similar rela- Law Applicable to Trusts and on their recognition,
tionships of this chapter
39
Definition applies only to the express trust
33
1 Austin W. Scott, The Law of Trusts 37 (3rd ed., 1967)
40
binding is used as that if even one of these characteris-
34
Id. tics is missing it can not be considered as an express trust
35
ItineraFiduciae: Trust and Treuhand in Historical Perspec- 41
The table is based on the Bogerts comparisons, though
tive 37 (R.Helmholz R.Zimmermann ed., Duncker&Humblot. there are many other comparisons, for instance Edward
1998) and Stockwell made comparison with contract, bailment,
36
ShintakuHou [S.T.H] [Trust Law] art.1. (Japan) administration of estate, condition and power.
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LAW REVIEW 2016 5(60)
ship
Trust
Bailment1
Agency
Guardian
decision/
/by court
Receivership2
parties
Contract for third
Usufruct
fiducia
Organizations.
Financial
by Non Bank
Trusts dealt
Civil Code
entrustment in
Asset
administration
to others
immoveable
Transfer of
For benefit of + + + + + + - - + + +
other than legal
owner
Fiduciary duty + - + + + + - + + + +/-
Separation of + - - -/+ - - + - +/- - +
ownership and
interest
Section 1.2 Usages and types of of usages and types of the trusts will help
the trusts to compare trusts to the civil law concepts
The significance of this chapter fulfilling similar functions and to identify
is to show the reason why trust or trust applicable sphere of trust concepts in civil
like devices are employed by the people law.
as a legal device. Economic behavior is 1.2.a. Usages of the trusts. Modern
a social exchange model in which people usages of trust is wide arranging from
want resources from others and engage family asset planning to investment and
in organized life, where the motivation is a security tools. For instance, in the USA
desire to maximize their gain of resources historically, the trust is being used and
and minimize losses42. The trust is a recognized as a device for intra-family
flexible device that opens possibilities of wealth transfer, but in recent times it
exchange that are not supported by the has begun to play a significant role in
strict rules of a Civil Code or judicially the capital market as a commercial tool,
establish property regime. as shown by the fact that pension trusts
In the legal theory trust as a legal and mutual funds hold 40 percent of all
concept is born by Courts of Equity in US equity securities and 30 percent of
England to avoid unjust results under corporate and foreign bonds45. Since
inflexible Common law rule on land modern usages of trust is very diverse
rights43.Trust law has become an and uncountable, as a summary of
established element of English law various views of the opinion leaders in
because it has proven to be useful this sense, followings are some of more
instrument for dealing managing of common uses of trusts in common law
settled land and property, establishment jurisdiction46.
of business entities and pursuing charity, 1. Family and personal property
defining right and obligation in various planning and preservation. Trust is used
types of transactions44. So understanding for many purposes, like transferring
property or benefit for his desired
42
2 Russel Safe Foundation Series in Trust, Tom. R Tylor,
persons, at the same time managing
Why People Rely on Others? Social Identity and Social As- and preserving wealth professionally and
pects of Trusts. Trust in Society 287 (2001)
43
Black`s Law Dictionary, 579 (8 th ed., 2004) (equity 4. 45
H.Hansmann&U.Mattei, Trust law in the United States.
The system of Law or Body of originating in the English A Basic study of its Special Contributions, 46 Am.J.
court of Chancery and superceding common and statute Comp.L.133 (Supplement, 1998)
law when two conflict 46
Almost all books on trust issues clearly describes the trust
44
R.Edward&N.Stockwell, Trusts and Equity 5 (Pitman, usages, therefore the author generalized these purpose and
1992) mentioned which are more popular and common.
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private trusts, it is necessary that the property. But in active trusts trustee has
beneficiary is identified more clearly and active management responsibility56 and
individually. But in the charitable trusts, as depending on the level of his discretionary
the beneficiaries are multiple subjects, power it also can be divided into two types
the important is the purpose rather than like, ministerial and discretionary57. In
individually identified persons. More over, the ministerial or fixed trusts the settlor
according to the UTC private trusts require determines the exact benefit which
determined (ascertainable) beneficiaries, each beneficiary should receive and
on the other hand charitable trusts are in the discretionary trusts, the trustee
created for public interests. Interesting has a power to decide the shares of the
is that the UTC allowed to create trusts beneficiary.
for animals, and other trust of non Section 1.3. Conclusion from the
charitable purposes, which is named as chapter
honorary trusts. Valid period, requirement From the trust descriptions and its
for identifying beneficiary purposes and comparison to the Mongolian Civil law
enforceability53 and property distribution concepts having similar characteristics,
at the end of the trust is differed, so the the author has come into the conclusion
principles of charitable activities also will that there is no similar concepts fulfilling
be applied to it. the functions Anglo American trusts. So
Depending on the possibility of from the summarizing of various usages
withdrawal by the settlor trust is sorted of the trusts in common law jurisdictions,
as a revocable and an irrevocable. In it is becoming clear that trust concepts
the revocable trusts settlor preserves can not be applied in such broad sphere
some rights on trust, namely the rights in civil law jurisdiction like its counterpart
to appoint, resign or change trustees in common law jurisdiction, because
and others. Revocable trust is used for some of these usages are covered by
avoiding probable process as a substitute the current legislation related to the
for a will in the USA54. In contrary to the corporation, non government organization
common law concepts, according to the and contract law. But its standards
UTC trusts are presumed to be revocable. related to the holding of trust property
On the other hand, in irrevocable trust, a independently, imposing fiduciary duty
setllor loses all his property interest on the on managers of others funds can help
trust property and the beneficiary who is to address the deregulations of the
the only capable person to enforce duties current legislation related to the property
by the trustee. Consequently, the rights of management and protection. Since the
the creditors of the trust parties also will rules related to the above mentioned
be quite different in this two types of the trusts differ depending on the types of the
trusts, so is the distribution of the trusts trusts and such types are arisen from the
property after the end of period of the case laws as a result of social needs for
trusts. them, it would be impossible challenge to
Relating to the duties of the trustee, develop all types of the trust in Mongolia.
trust is classified like simple and special Because Mongolian economy and legal
trusts.55 In simple trust, sometimes structure is still young and immature
named as passive or bare trusts, trustee comparing to the conditions of the Japan
has only duty to hold legal title to the and USA, when trust was introduced. For
example, for developing express trusts,
53
David M. English, Uniform Trust Code and Its Appli- there should be more justified legal and
cation to Ohio, Capital University L.Rev., 1 (2002) 56
Nicole Y. Emnett, Case note: McCollunm v. McCollunm: Merg-
54
Id. er ad Fiduciary dutyin Arkansas, Ark.L.Rev. (1999)
55
Supra note 56 at 33 57
Supra note 45 at 58
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responsive to commodities boom and bust The mining industry and investment
cycles as well as investors interests. The flows are international in nature.
objectives of mining sector policies have Improving the Minerals laws and Minerals
increasingly moved beyond mobilized policy is not sufficient to attract increased
revenue. In recent years, lower demand foreign investment, and promote social
for bulk commodities, combined with a development and economic growth.
bleak global outlook and a production The mining industry is a business.
hangover, sent commodity prices down,2 Therefore, a profit making goal is its
although in 2016 some commodity essential element. In addition, the mining
prices have improved, and the outlook is industry is subject to the requirement of
somewhat more promising. However, it is responsible mining which implies safe
not safe to assume a direct connection mining practices for the environment,
between legal and economic cycles. The people, and supporting the social and
duration of the investment downturn and economic development of a host country.
recovery prospects are likely to be uneven Transparent mining practices ensure
in various countries.3 that mining revenues are clearly and
The Minerals law of Mongolia has accurately reported, disclosed, and are
certain provisions to highlight which are managed at fair and equitable terms.
outlined below: In this regard, a resource rich country
An exploration or mining license like Mongolia must pay ad equate attention
may be pledged with banks or non- to its taxation, accounting, revenue
banking institutions as security for administration, contract negotiation and
receiving finance together with work management capacity. In addition, it is
result reports, geological information, and crucial that the host country understands
feasibility studies. (Article 51) the economic meaning and effects of
A deposit use agreement may various taxes, and fees associated with
be entered into between the government the mining well.
and a mining business. The government 3. Legal and contractual regimes
participation in mining projects may be The legal obligations placed on a
agreed by such agreement. Up to a 50% company operating in the mining sector
participation right may be permitted to may be enshrined in a mining law, in an
the government if the government funded individually negotiated agreement, or within
the costs of exploration for a strategically model contracts with specified exceptions.
significant deposit. (Article 5) In a pure permit regime, the government
The governments participation in details all the major obligations for mining
the strategically significant deposit may companies in legislation, and companies
be substituted by a royalty. (Article 5) apply for permits for exploration and
Mineral royalties are increased extraction under the defined terms of
to reflect market price rises for mineral laws. This framework allows little scope
products. (Article 47) for discretion in granting differential terms
An extraction license holder is for companies involved in the extraction
required to trade no less than 10% of its of the same mineral. In a pure contractual
shares at the Mongolian stock exchange. regime, the obligations of individual
(Article 5.6) companies are negotiated and detailed in
2. Mining industry is a business a contract often referred to as a mineral
2
PWC, Review of global trends in the mining industry, Mine development agreement. In practice, most
2016, page 5 countries do not operate a pure permit or
3
African mining industry developments and opportunities: A a pure contractual regime. The range of
Global Perspective, Presentation delivered at Norton Rose
Full bright Event by Professor Peter Cameron, Mining Inda-
obligations that a typical mining company
ba, Cape Town, 9 February 2016, page 2
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LAW REVIEW 2016 5(60)
effective, the very large imbalances in to force any member to adopt such
expertise between governments and rules, governments clearly recognize
resource companies must be reduced the benefits of taxpayer disclosure over
by appropriate staffing, and staff training. government/auditing agent searches.
Here, quality is more important than Any required disclosure that includes
quantity. payments to foreign persons may increase
In respect of international initiatives, the risk of scrutiny by anti-fraud regulators,
in 2014, members of the Organization for especially regarding semi-legal payments
Economic Co-operation and Development to public officials for transport permits and
(OECD) including several developed other essential tools of business.8
nations in Europe and Latin America and Various countries, including Australia
many tax havens such as the British Virgin (in particular Western Australia) and
Islands, issued a joint statement calling South Africa, have reviewed the rules
for a global standard for the automatic for determining royalty rates. The royalty
exchange of information between tax rates reflect the depth of a mine (deep
authorities. They believe that such underground, underground or open cut
exchanges can help to clamp down on tax mines) different levels of value added
evasion, and shift the burden of proof from processing (semi-processed, concentrate
tax authorities to tax payers who would or metal) and the profitability of mining
have to defend their structures. projects.
The move towards transparency Any country contemplating changing
is nothing new for mining companies, royalty rates should be aware of the
having already experienced the Extractive significant risk of capital being withdrawn
Industries Transparency Initiative (EITI) due to sovereign risk perceptions. Mining
which passed in 2003 and which calls companies look for certainty. They are
for certain disclosure of payment and using tools such as advanced compliance
revenues. Annual EITI reports produced agreements, ruling requests and tax
by mining companies are subsequently policy submissions to policy makers.
reconciled by the national tax authorities. When investing into new projects,
Country-by-country reporting is a more mining companies are using advanced
recent trend. pricing agreements, bilateral investment
In 2013 the OECD began a treaties, and fiscal stability agreements to
collaboration to address international obtain certainty around key tax variables
rules that enable profit shifting, allow underlying their investment decisions.9
double non-taxation and erode domestic 8. Profits sharing and policy
tax bases. Its September 2014 draft objectives
recommended revised standards for It is commonly argued that resource
transfer pricing documentation with rich countries are not always economically
multinationals required to annually report advanced or are not experiencing
revenue, profits, income taxes paid, and/ noticeable growth. It is also claimed that
or accrued, the number of employees, mining revenues do not promote social
stated capital and retained earnings, and equity. There are countries where mining
tangible assets for each country in which revenues are managed successfully. For
they do business. Additionally, companies example, the Alaska Permanent Fund has
would have to identify each entity within been in place since 1977 and it receives
the group that operates in a particular about 10 per cent of the states income
tax system, and indicate the nature of its
8
KPMG, Trends in taxation, Coping with transparency, min-
business. ing royalties and volatility, kpmg.com/mining
Although the OECD has no power 9
KPMG, Trends in taxation, Coping with transparency, min-
ing royalties and volatility, kpmg.com/mining
40
Implementation of Law, Efficiency and Issues
from oil and annually distributes a share subsoil assets with investments in human
of the accrued interest to all citizens as resources, infrastructure, and broader
a dividend. Advocates suggest that such and long term productive capacity and
a plan would do a better job than the diversification;
government in allocating rents by keeping - Ensure that resource extraction
part of the oil revenues out of the hands of takes place in a manner that minimizes
politicians, hence reducing corruption and environmental degradation and promotes
government inefficiency, and becomes a biodiversity;
powerful tool for achieving social goals.10 - Ensure benefits for communities
Although there are several methods are defined through a fair process;
of profits sharing, there are legitimate - Develop capacity for local,
interests in the host country that local regional, and national value adding
regions develop, new jobs are created, through the development of upstream
targeted public programs are supported and downstream linkages -as well as side
and the gap between the poor and rich stream linkages to skills and technology-
narrows. based sectors and infrastructure and
At the end, the objectives of the support for entrepreneurs at the local and
mining sector policies may be, among national levels;
others, to: - Ensure health and safety
- Offset the depletion of finite standards.11
10
Macartan Humphreys, Jeffrey D. Sachs, and Josepth E.
Stiglitz, Escaping the resource curse, 2007, Page 242-243
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11
A World Bank Study, 2015, The Extractive Industries Sec-
tor, Essentials for economists, public finance professionals,
and policy makers, page 13
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1. Introduction
With Mongolia being a unitary state,
B.Enkhbold, Ph.D, Head of Police the criminal justice system in the country
Research Center, Research and comprises a composite whole. The legal
Development Institute, Law Enforcement and social institutions for enforcing the
University criminal law thus apply uniform rules and
procedures in all twenty one administrative
units of the country in executing their
Abstract respective mandates.The criminal
The objective of this article is to justice system in Mongolia has changed
introduceabout criminal justice reform in significantly over the 20 years since the
Mongolia and its outcome of performance country became democratic.The criminal
encompassing last 11 years. Data on justice system is deemed a focal area in
criminal justice statistics for period the transition to democracy, and in the
between 2004 and 2014 obtained from process of democratization of institutions
three different criminal justice agencies and civil society. Police and courts are
police, court and correction services. seen as the vanguard of democratic
Despite the passage of significant legal change. It is a significant characteristic of
reforms and considerable changes such claims that the legitimacy of criminal
in criminal justice sector operations, justice institutionsthe police and the
especially in the courts and the police courtsis seen as decisive in securing
service, public trust in the rule of law is legitimacy for the transition to democracy,
still not well established; and critics often and for democratic government, and
question the capacities and fairness of the thus the contribution of these institutions
criminal justice system.Statistics shows to the political stability in the transitional
that average crime rate per 100,000 environment is of major importance
persons were 767 last 11 years. According (Susanne, 2003).
to statistics, 20973crimes were reported ComparingMongolia with other
to police and 13036 or 63.1percent out of countries within the region, the
the total number were solved. Averagely, countrys reform efforts have been
19308 persons were investigated as generally successful. During the early
suspects per year and 8359 or 43.9 and economically difficult times since
percent out of that number were ruled as democracy was established, reform
guilty and convicted by court. As for types activities naturally focused on legal
of punishment per 100,000 persons, 0.2 reforms, including the creation of a
percent was imposed by death penalty, legislative framework for democratic
73.5 percent by imprisonment, and 26.3 institutions, the transition to a market
percent by other punishments. Currently, economy, and significant changes in the
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the legitimacy of the legal system. crimes and criminal justiceby the National
Moreover, citizen representatives will statistics agency is too generalized
boost public confidence in the courts, therefore,official datadirectly taken from
while increasing popular awareness of the statistics departments under police,
and civic involvement in the judiciary. court, and correction services was applied
Recently, Political leaders have as reference in this research. It is limited
been taking following steps to upgrade to use national criminal justice relateddata
the criminal justice system: 1) Establish collected by the National criminal justice
transparent and human right reflected components in Mongolia.In this analysis,
fundamental to crime combat,2) Abolish the form of simple descriptive statistics
the authority of prosecutor to conduct such as frequencies, percentages, rates
special operations which contain some and rates of change were applied. Below
characteristics of human rights violation simple formulas can provide several basic
during interrogation processand transfer standards such as what was the crime
the this authority to judges, 3) Provide rates and rate of incarceration in Mongolia
secure working environment to law between 2004 and 2014. It is based on the
enforcement personnel and equip the law number of crimes, rate of incarceration
enforcement organizations with cutting- per 100,000 people.
edge technologies, increase HR capability, Crime and crime clearance rate
offer competitive benefits, and enhance Public trust on the police is closely
legal environment of the organizations in related to the police performance in
order to bring their performance to world crime control (Jang & Hwang, 2014).
standard. Thereforecrime prevention and control
III. Criminal justice statistics have been considered the primary
Data source responsibility of the police. In particular, the
Data on criminal justice statistics for crime rate of a society is commonly used
period between 2004 and 2014 obtained as one of the most important indicators
from three different criminal justice of police performance (Goldstein, 1977;
agencies; police, court and correction. Kelling, 1996). However, there has been
The content of criminal justice statistics is a significant increase in recorded crime
established by the criminal legal system rates, especially since 1990, and it has
of nation. It is the criminal legal system fluctuated over the last 10 years. As
that defines crimes and consequently indicated in below table-2, averagely
designates individuals as offenders. 20973 crimes have been reported to
Transnational differences in definitions police in 11 years and 63.1 percent out of
of such widely used terms as crime, that was solved whilecrime rate was 767
offender, suspect, charge or conviction per 100,000 people in 11 years. Starting
are inevitable. Similar observations apply from 2007, crime rate decreasedgradually
to data from the administrative records of while it started to increase again from
the police, courts and prisons. Mongolia 2012 reaching its peak in 2014. The crime
has a centralized data-collection system rate went by 33.8 percent or 8413 crimes
and each criminal justice components that comparing the rate between 2004 and
cover all areas of Mongolia are required 2014. Rate of clearance the crimes was
to follow standardized national procedure the highest about more than 80 percent
to record crime, offender, charges and between 2004 and 2006 whereas it
sentence and prison related statistics. reached the lowest between 2007 and
Statistics departments under police, 2008 followed by constant decrease from
prosecutor, court, and correction services 2010. Comparing to the year 2004, rate
make analysis on data, sent by local level of crime clearance went down by 23.2
law enforcement organizations, which percent in 2014. During socialist regime,
ismonthly, quarterly, and yearly, sent to the rate of solving crime was over 90
National statistics office that is responsible percent however this trend significantly
for publishing all data for public purpose. went down from mid-1990.
The content of published information on Table 2.Crime and crime clearance
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year. The lowest rate happened in 2010 44.5 percent was given probation, 2750
at 202.2which is lower than the average or 44.7 percent sent to prison while 659
imprisonment rate of a year. Comparing the or 10.7 percent released from criminal
statistics of 2004, the rate of imprisonment liability according to the Pardon law(CSR,
per 100,000 personsdecreased by 2014).
21.6 percent in 2014and the trend is
to continuously drop. Rate of imposing Prison population in Mongolia
other punishments per100, 000 people is 2004-2014.
constantly decreasing since 2007. According to below line graph, prison
Table 3.Punishments for offenders population per 100,000 personsreached
convicted per 100.000 populations. (2004- its peak in the last 10 years at 278 in 2005,
2014) which is 11 percent more than the that of
Source: Court Statistic Report (CSR) 2004.This indicator became 201 in 2006,
The president of Mongolia, declining by 27 percent compared to 2005
ElbegdorjTsakhia, proposed to abolish and dropped till188 in 2009 reaching its
death penalty based on 8 provisions and lowest point. Between 2010 and 2012,
2 specific rationales on Jan 14, 2010 to prison population per 100,000 persons
the Parliament of Mongolia and it resulted steadily increased whereas it descended
to proclaim moratorium for death penalty between the year of 2013 and 2014. As
in Mongolia. By the first 4 months of 2010- per 2014 statistics, prison population per
2011, total of 14 inmates were sentenced 100,000 persons was 201 which is 19.1
to 30 years in a prison with the strictest percent lower than that of 2004.
control, who were pardoned by the
president of Mongolia according to Article Figure 1.Prison population in
15, provision 15.2 of Presidential law Mongolia (2004-2014)
(NHRCOM, 2012).
The government of Mongolia voted
for abolishing death penalty at the general
Assembly of UN on Nov 2, 2010 and the
Presidential office drafted 7 amendments
in the criminal code. The moratorium for
death penalty has not been legalized and
officially passed by the Parliament yet but
it has been avoided to be applied in judicial
practice.Due to punishment policy in new Source: National Correction Service (NCS)
criminal code enacted in 2002, there is no Table 5 shows prison population per
significant fluctuation on the imprisonment 100,000 persons in Mongolia including the
rate per 100,000 persons between 2004 rate of sentenced and remanded prisoners
and 2012. Although number of accused along with their genders. According to
individual is decreasing, it is relatively several clauses stated in the criminal
high percentage that 73.5 percent of total code, court has an authority to transfer
criminals has been imposed imprisonment, controlling responsibility to local police if
revealing that the punishmentpolicy is very the court ruled that the convicted person
strict in Mongolia. In the effective criminal does not have to be physically imprisoned.
code, 449 acts are considered as a crime, Study presents thatthe imprisonment rate
of which 330 crimes are determined to be per 100,000 persons was 101.4 or 44.6
imprisoned (Erdenebat, 2013).According percent out of total punishments(NCS,
to the criminal code, there are two ways to 2014).Number of new inmates coming
executing court decision on the accused to prison per 100,000 persons reached
person: imprisonment and probation. The its peak at 123.6 in 2005 followed by
figure 1 shows that the trend of execution 88 or 27.9 percent decline in 2006. This
of court decision. By the average of last indicator significantly escalated till 109.9
11 years, total of 6147 individuals were in 2007 which is 26.5 percent more than
imposed imprisonment, of which 2738 or the previous year. Since 2009, the rate
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Weisungen, wie z.B. die Unterstellung bleibt aber vom befristeten Fahrverbot
unter die Aufsicht und Leitung eines unberhrt. Der Versto gegen dieses
Bewhrungshelfers, Anordnungen Verbot stellt eine erneute Straftat dar ( 21
zu befolgen, die sich auf Aufenthalt, Abs. 1 und 2 StVG).
Ausbildung, Arbeit oder Freizeit oder
auf die Ordnung seiner wirtschaftlichen 2.3.5 Maregeln der Besserung
Verhltnisse beziehen, bestimmte und Sicherung
Gegenstnde nicht zu besitzen, die
Gelegenheit oder Anreiz zu weiteren Das deutsche Strafrecht kennt
Straftaten bieten knnen, dienen insgesamt sechs Maregeln der
ausschlielich dem Zweck, Straftaten Besserung und Sicherung, drei
des Verurteilten in Zukunft zu verhten. nichtfreiheitsentziehende (sogenannte
Kommt der Verurteilte den ihm erteilten ambulante) und drei freiheitsentziehende
Verpflichtungen nicht nach, dann wird (sogenannte stationre) Sanktionen.
die Aussetzungsentscheidung widerrufen Die Entziehung der Fahrerlaubnis,
und die Freiheitsstrafe vollstreckt. Fhrungsaufsicht und Berufsverbot
Sowohl bei zeitiger als auch bei gelten als die ambulanten Maregeln,
lebenslanger Freiheitsstrafe besteht die whrend die Unterbringung in einem
Mglichkeit, die Vollstreckung eines psychiatrischen Krankenhaus ( 63 StGB),
Strafrestes zur Bewhrung auszusetzen in einer Entziehungsanstalt ( 64 StGB)
( 57, 57a StGB). oder in der Sicherungsverwahrung ( 66-
66b StGB) zu den stationren Maregeln
2.3.4 Das Fahrverbot als gehren.
Nebenstrafe Mit dem sogenannten
Gewohnheitsverbrechergesetz wurden im
Das deutsche Strafensystem kennt Jahre 1933 neben den eigentlichen Strafen
auch eine Nebenstrafe, das befristete Maregeln eingefhrt. Damit wurde
Fahrverbot. Das befristete Fahrverbot das sogenannte zweispurige System im
kann im Urteil nicht selbstndig, sondern deutschen Sanktionenrecht errichtet. Die
nur in Kombination mit einer Hauptstrafe Dauer der Maregeln wird vom Gesetz
verhngt werden23. Das Fahrverbot kann nicht befristet und auch nicht durch das
von 1 bis zu 3 Monaten verhngt werden, gerichtliche Urteil bestimmt, sondern erst
wenn die Tat, wegen der Angeklagte whrend des Vollstreckungsverfahrens
verurteilt wurde, im Zusammenhang mit konkretisiert.
dem Fhren eines Kraftfahrzeuges stand ( Bei den Maregeln der Besserung
44 StGB). Zum Unterschied der Maregel und Sicherung kommen kriminalpolitisch
der Entziehung der Fahrerlaubnis ( 69 die drei Elemente der Spezialprvention
StGB) zielt das Fahrverbot nicht darauf zur Erwgung, die Abschreckung (z.B.
ab, die Allgemeinheit vor ungeeigneten durch die Entziehung der Fahrerlaubnis),
Verkehrsteilnehmern zu schtzen. Es Besserung und Sicherung. Darber
hat die spezialprventive Funktion, hinaus werden bei den Maregeln
nachlssigen oder leichtsinnigen der Besserung und Sicherung je nach
Kraftfahrern, die zum Fhren von der Art und den Einwirkungsmitteln
Kraftfahrzeugen nicht grundstzlich im einzelnen sehr verschiedenartige
ungeeignet sind, zustzlich zur kriminalpolitische Zwecke verfolgt. Alle
Hauptstrafe eine Mahnung zu erteilen. Arten von Maregeln verfgen jedoch
Das Fahrverbot hat zur Konsequenz, ber gemeinsame Ziele: die Verhinderung
dass es dem Verurteilten untersagt ist, von Straftaten und die Sicherung der
im Straenverkehr Kraftfahrzeuge zu Allgemeinheit24.
fhren. Der Fhrerschein wird in amtliche Die Maregel der
Verwahrung genommen ( 44 Abs. 2 Satz Sicherungsverwahrung stellt die
2 StGB), die eigentliche Fahrerlaubnis ultima ratio des strafrechtlichen
Sanktionensystems dar und ist sie in
Nheres zu dieser Sanktion Kulemeier, R., 1993, S. 212 ff.;
23
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die Schuld als hinreichend kompensiert Nach 153 StPO kann ein
erscheinen lassen und es keine Ermittlungsverfahren eingestellt werden,
prventiven Gesichtspunkte gibt, die wenn die gesetzlichen Voraussetzungen
eine Verhngung von Strafe erforderlich erfllt sind. Voraussetzungen fr die
machen. Das Absehen von Strafe nach Einstellung wegen Geringfgigkeit
60 StGB kommt grundstzlich bei gem. 153 StPO sind, dass die Schuld
allen Delikten in Betracht. Aber der des Tters gering anzusehen wre, kein
Gesetzgeber hat eine gewisse Grenze ffentliches Interesse an der Verfolgung
aufgestellt, dass der Tter fr die Tat der Tat besteht und es sich bei der Tat um
keine Freiheitsstrafe von mehr als einem ein Vergehen handelt. In der Praxis hat
Jahr erhalten haben darf ( 60 Satz 2 die Einstellung nach 153 StPO enorme
StGB). Eine Besonderheit beim Absehen Bedeutung. Ein Strafverfahren kann im
von Strafe stellt dar, dass es als alleinige Ermittlungsverfahren oder auch noch
Form der Reaktion anzuwenden ist. in der Hauptverhandlung eingestellt
Erachtet das Gericht die Voraussetzungen werden, ohne dass es zu einer Bestrafung
fr gegeben, so muss es das Absehen von des Beschuldigten kommt.
Strafe im Urteil zwingend whlen. Es gibt Auch gem. 153a kann eine
keine Wahlmglichkeit. Dem Gericht ist Verfahrenseinstellung gegen Auflagen
ein Ermessen nicht eingerumt. oder Weisungen erfolgt werden. Die
Bei der Verwarnung mit Voraussetzungen dafr sind: es muss
Strafvorbehalt verwarnt das Gericht sich um ein Vergehen handeln, bei
den Tter zustzlich zum Schuldspruch, einem Verbrechen ist die Einstellung
bestimmt bereits eine (Geld-)Strafe, gegen Auflagen ausgeschlossen. Die
und setzt die Verhngung zu dieser Schwere der Schuld und das ffentliche
Strafe aber zur Bewhrung30 aus ( 59 Interesse durfen einer Einstellung nicht
StGB). Allerdings ist die Verwarnung entgegenstehen. Diese Art der Einstellung
mit Strafvorbehalt nur bei Geldstrafen ist bei Delikten bis in den Bereich der
bis zu 180 Tagesstzen zulssig. Ziel mittleren Kriminalitt. Darber hinaus
der Verwarnung mit Strafvorbehalt ist sind im deutschen Strafrecht weitere
es, im unteren Bereich der Kriminalitt Einstellungen eines Strafverfahrens nach
der Tter insbesondere dem Ersttter 154 und 170 StPO mglich.
die Bestrafung zu ersparen. Aber die
Verwarnung mit Strafvorbehalt spielt in 2.3.8 Gemeinntzige Arbeit
der Praxis nur eine geringe Rolle.
Ist die Geldstrafe uneinbringlich, so
2.3.7 Einstellung des Verfahrens ist mit Androhung bzw. Anordnung der
nach 153 ff. StPO Ersatzfreiheitsstrafe nach entsprechenden,
gem. Art. 293 EGStGB erlassenen
Durch das EGStGB vom 02.03.1974 Rechtsverordnungen und Verfgungen
wurde der Justiz in Deutschland die der einzelnen Bundeslnder (die seit
Mglichkeit geboten, Verfahren aus Anfang 1987 berall und flchendeckend
Opportunittsgrnden einzustellen. gelten) dem Verurteilten gleichzeitig
Es geht dabei nicht darum, dass sie mitzuteilen, dass er die Geldstrafe auch in
nicht wegen des fehlenden (oder nicht Form der freiwilligen Arbeit leisten kann.
beweisbaren) Tatverdachts erfolgen, Es setzt die Freiwilligkeit von Seiten
sondern wegen des fehlenden ffentlichen des Verurteilten voraus, jedoch gibt es
Interesses an der weiteren Verfolgung der fr ihn keine eigene Wahlmglichkeit
Tat.31 zwischen der Bezahlung der Geldstrafe
und einer Leistung durch Arbeit, sondern
30
Eine Aussetzung der Vollstreckung der Geldstrafe zur
Bewhrung sieht das StGB nicht vor. Die Verwarnung
das Gericht entscheidet. Nachdem
mit Strafvorbehalt im Anwendungsbereich der Geldstrafe entsprechende Projekte bereits Anfang
hat jedoch eine hnliche Wirkung. Zur Verwarnung mit der 1980er Jahre erfolgreich waren,
Strafvorbehalt und Absehen von Strafe siehe nheres Al-
brecht, H.-J., 2005, S. 1751 ff. und 1759 ff.
wurde die Ableistung gemeinntziger
Arbeit schrittweise in den verschiedenen
31
Siehe nheres dazu Meier, B.D., 2006, S. 8 ff.
61
LAW REVIEW 2016 5(60)
62
Legal Research Overview
39
Jescheck, 1992, Einleitung, Rndr. 93. EU (AEUV).
63
LAW REVIEW 2016 5(60)
64
Legal Research Overview
65
LAW REVIEW 2016 5(60)
66
Legal Research Overview
67
LAW REVIEW 2016 5(60)
durch eine geeignete Behandlung in der ist die Gefangenenrate pro 100000
Gesellschaft und in Freiheit verhindern. Einwohner in der Mongolei dreimal hher
als in Deutschland. Fr die Mongolei
Tabelle 1. Entwicklungstrend der
Deutschland Mongolei
Bevlkerungszahl* (pro km2) 81,8 Mio. (230) 2,8 Mio. (1,9)
Gesamt- Rate pro Gesamt- Rate pro
Jahr Jahr
zahl 100000 E zahl 100000 E
1992 57 448 71 1993 6085 270
1995 66 146 81 1996 6070 265
Entwicklungstrend bei den 1998 78 592 96 1999 6414 271
Gefngnisinsassen**
2001 80 333 98 2002 7256 296
2004 81 166 98 2005 6998 274
2007 75 719 92 2008 7570 287
2010 72 052 88 2010 7265 269
Anteil weibliche
5,6% 6,2%
Gefngnisinsassen
Anteil jugendliche
Gefngnisinsassen unter 18 3,2% 1%
Jahren
68
Legal Research Overview
nicht kennt, ist die Verwarnung sind, die alle gleichermaen erfllt werden
mit Strafvorbehalt im deutschen mssen. Es muss also eine minderschwere
Sanktionensystem, die in Verbindung Tat sein, der Tter muss ein Ersttter sein,
mit der Geldstrafe angeordnet wird. Dies den Schaden freiwillig ersetzt und die
ist identisch mit der Strafaussetzung zur Folgen der Tat beseitigt haben. Erst dann
Bewhrung der Freiheitsstrafe, aber es ist kann das Gericht entscheiden, wie lange
eben nur bei der Geldstrafe anwendbar. In die Dauer der Strafaussetzung erfolgt.
den mongolischen Reformdiskussionen Im Gegensatz dazu gibt es im
wurde eine Aussetzungsmglichkeit deutschen Strafrecht wenige Kriterien.
der Geldstrafe gelegentlich erwhnt, Es muss blo eine Straftat sein,
fand aber keine Zustimmung. Fr viele fr die vom Gericht bis zu 2 Jahre
scheint die Aussetzung der Geldstrafe Freiheitsstrafe angedroht wird, wobei
zur Bewhrung unvorstellbar zu sein, es gengt, dass vom Tter zuknftig
denn man kennt die Strafaussetzung in keine Straftaten zu erwarten sind.
der Mongolei nur in Verbindung mit der Dies war der Kernstck des deutschen
Freiheitsstrafe. Aber das heit nicht, dass kriminalpolitischen Programms, die
es nicht machbar wre. hnliche Strafarten nachhaltige Einschrnkung der als
wie die Verwarnung mit Strafvorbehalt resozialisierungsfeindlich angesehenen
des deutschen Strafrechts scheinen kurzen Freiheitsstrafe, die in Zukunft
fr die mongolischen Verhltnisse nur noch in einem ganz engen und auch
kriminalpolitisch durchaus interessant kriminalpolitisch vertretbaren Bereich
zu sein. Es ist zwar im mongolischen verhngt und vollstreckt werden sollte49.
Strafrecht noch ein unbekanntes Feld, Ihre zeitliche Grenze bestimmt sich
welches jedoch in Zukunft entdeckt und ohne Rcksicht auf den Deliktcharakter
erforscht werden sollte. nach der Hhe der erkannten Strafe, so
dass auch wegen Verbrechen verhngte
3.2.3 Die Strafaussetzung zur Freiheitsstrafen aussetzungsfhig sind.
Bewhrung Damit war die Erwartung verbunden,
den Strafvollzug nachhaltig zu entlasten
Was die bedingte Freiheitsstrafe und so berhaupt erst die tatschlichen
betrifft, wurde die Einfhrung der Voraussetzungen fr dessen Reform zu
Strafaussetzung und Entlassung zur schaffen50.
Bewhrung im allgemeinen Strafrecht in Solche Manahmen wie
das deutsche Sanktionensystem erst 1953 die Vereinfachung der Prognose
eingefgt und deren Wiedereinfhrung und der Wegfall der formellen
im Jugendstrafrecht. Im Vergleich dazu Ausschlussvoraussetzungen sind fr die
kannte das mongolische Strafrecht dieses Mongolei kriminalpolitisch sehr ratsam,
spezielle Institut des Strafrechts dank um das Problem der Gefngnisberfllung
des sowjetischen Rechtseinflusses bereits nachhaltig lsen zu knnen.
seit den 1920er Jahren. Es gibt aber einen Im Gegensatz zur deutschen
Unterschied zwischen der beiden Lndern Regelung ber die Strafaussetzung
bei den Anwendungsmglichkeiten der ist im mongolischen Strafrecht
Strafaussetzung zur Bewhrung. Auf keine nachtrgliche Verkrzung
den ersten Blick scheint das mongolische bzw. Verlngerung der Dauer der
Sanktionenrecht bezglich der Strafaussetzung zur Bewhrung
Strafaussetzung zur Bewhrung milder mglich51. Die Grenze der Bewhrung
zu sein, denn es ist gesetzlich mglich liegt zwischen einem und bis zu fnf
die Freiheitsstrafen bis zu 5 Jahre zur Jahren. Die Frist wird in der Gerichtspraxis
Bewhrung auszusetzen, whrend das in hufig sehr einfach festgelegt. Bei
Deutschland nur bei Freiheitsstrafen bis
zu 2 Jahren mglich ist. Der Haken des 49
Erster Schriftlicher Bericht des Sonderausschusses fr die
Strafrechtsreform. BT-Drs. V/4094, S. 6.
mongolischen Strafrechts liegt darin, dass
50
Erster Schriftlicher Bericht des Sonderausschusses fr die
mehrere gesetzliche Voraussetzungen zur Strafrechtsreform. BT-Drs. V/4094, S. 11.
Strafaussetzung auf Bewhrung gesetzt 51
Vgl. dazu 56a Abs.2 Satz 2 dStGB.
69
LAW REVIEW 2016 5(60)
70
Legal Research Overview
71
LAW REVIEW 2016 5(60)
72
Legal Research Overview
73
LAW REVIEW 2016 5(60)
Sanktionen zum Freiheitsentzug und die Walmsley. R., ICPS World Prison
Reform des Sanktionensystems, Frankfurt Brief, unter: http://www.prisonstudies.
am Main. org/info/worldbrief/wpb_country_
Maurach, R., Gssel, K.-H. & Zipf, print.php?country=104; (und =139)
H. (1989): Strafrecht Allgemeiner Teil. (abgerufen am 23.05.2012).
Teilbd. 2: Erscheinungsformen des Weigend, T. (1986): Die kurze
Verbrechens und Rechtsfolgen der Tat Freiheitsstrafe eine Sanktion mit
(C.F. Mller Lehr- und Handbuch). 7. Zukunft? JZ, S.260269.
Aufl., Heidelberg. Wolfrum, R. (2006): Das Recht der
Meier, B. D. (2006): Strafrechtliche Mongolei unter Dschingis Khan und
Sanktionen. Springer-Lehrbuch. 2. Aufl. seinen Nachfolgern: Die Bedeutung
Nelle, D. (2003): Die Reform von des Rechts in nicht-staatlich verfassten
Strafrecht, Strafprozess und Strafvollzug Gesellschaften. In: Verfassung und Recht
in der Mongolei. ZStW 115, H. 2, S. 5188. in bersee (VR). 39. Jg., S. 517.
Roxin, C. (2006): Strafrecht. (Das
Allgemeiner Teil, Bd. 1, 4. Aufl., Mnchen. Strafgesetzbuch der Mongolei),
Roxin, C., (1997): Strafrecht. (Staatsbulletin), 2002 Nr. 5.
Allgemeiner Teil, Bd. 1: Grundlagen, ,
Aufbau der Verbrechenslehre, 3. Aufl.,
Verlag C.H. Beck. (Strafgesetzbuch und Strafprozessgesetz
Scholler, H. (2010): Grundrechte und der Mongolei), Ulaanbaatar 2008.
Rechtskultur auf dem Weg nach Europa.
Berlin.
---o0o---
74
International Experience
1
The Prison Service carries out custodial detention and sanctions
defined by law. The organization is also responsible for the after-
2
Roy Walmsley, Prisons In Central And Eastern Europe,
care following the release from prison and the tasks related to the HEUNI Paper No. 22, The European Institute For Crime
correctional probation services. The Prison Service is under the Prevention And Control, Affiliated With The United Na-
control of the Ministry of Interior and is an independent and armed tions Helsinki, 2005 (ISSN 1236-8245), pp. 303-3
law enforcement agency. 3
Ibid.
75
LAW REVIEW 2016 5(60)
Rules4 in 2006 and the Hungarian Prison Prisoners may move freely in determined
Code in 2009, many changes followed in areas within the parametersof the prison9;
Hungarian prison policies. These changes iii) High security prisons (Fegyhz), holding
aimed to improve prison conditions, prisoners serving life imprisonment;
though the implementation of the Prison for a sentence ofover three years for
Rules has been gradual and much work crimes against the state, terrorism,
remains. firearms, drugs, homicide,kidnapping,
The new Prison Code, part of the sexual assault, and other violent crimes.
ongoing comprehensive legal reform, Prisoners may move within theparameters
used the new criminal code. Act no. CCXL of the prison only with proper
of 2013 places great emphasis on the social authorization and under supervision.
integration of former prisoners in order Thismay be loosened exceptionally
to facilitate their successful participation after one year of imprisonment10.
in the lives of law-abiding communities Female prisoners are segregated from
after release5. male prisoners and adult prisoners are
segregatedfrom juvenile prisoners under
Organizational structure
21 years of age.Most of the prisons
The Hungarian prison system has were built in the second half of the 19th
been the responsibility of the Ministry century11.
of Interior since1963. The Director
Financial Management: The available
General (head of the National Prison
central funding is sufficient to ensure
Administration) is General MrAndrs
stable operation. The amended spending
Csti6. The senior management team
allowances on December 31(2014)
includes the first Deputy Director Major
called for 61,5% personnel and related
General Dr. Tams Tth, the Deputy
cost, 33,9% material cost, and only
Director General responsible for financial
the remaining 4,6% were dedicated
matters Major General Jzsef Lajtr
to other operational and savings cost.
and Deputy Director General, Security
The HPS used some of savings to make
and Incarceration Major General Jnos
investments and renovations during the
Schmehl7. The HPS Headquarters is
year, including security system upgrades,
based in Budapest.
guard station modernization, installing
General prison conditions new kitchen appliances, renovating cells
Hungary has three and upgrading electric networks12. In 2014
categories of security prisons: every eligible member of staff received
i) Minimum (Foghz), holding those under HUF 61,500 worth of clothing and uniform
18 years of age and prisoners authorized (12M law enforcement summer service
to be in atransition group towards the end boots, summer service jacket and tactical
of their sentence. Prisoners may move belt) and HUF 35,000 in cash as clothing
freely withinthe parameters of the prison8; allowance13.
ii) Medium (Brtn), holding the majority Prison population: Prisoners numbers
of prisoners on remand(Bv. Intzet) and increased at a slower rate than before.
those convicted of nonviolent crimes. Strict and medium regime sentences
continue to dominate; the increase in total
The European Prison Rules, which provide the benchmark prisoner numbers fell almost entirely into
4
76
International Experience
ADORJAN-TEX Ltd.,
Allampuszta Ltd.,
Annamajor Ltd.,
BUFA Ltd.,
DUNA-MIX Ltd.,
DUNA-PAPIR Ltd.,
On 2015, 17,796 individuals were Ipoly Ltd.,
incarcerated in Hungary (nearly as the Nagyfa-Alfold Ltd.,
same as from the previous year). Hungary
has an overall incarceration rate of 128 Nostra Ltd.,
per100,000 population, compared with Palhalma Agrospecial Ltd.,
a rate of 149 per 100,000 population for Sopronkohida Ltd.
England and Wales, 143 for Australia,
Prison establishments are headed
142 for Spain, 81 for Germany, and 57
by prison governors. They are tied
per 100,000 population for Sweden15.
to the Headquarters through service
While Hungary does not have the highest
agreements. According to the rules, all
imprisonment rate in Europe, these
prisoners would have at least3.5m of
figures have been on the decline over the
space. This increase in planned space
course of the past decade.
per prisoner brought the Hungarian
Accommodation and overcrowding prison system closer to the 4m which
There are 27 prisons, Headquarter is regarded as the minimumacceptable
(HQ) and 6 affiliated institutions to Prison by the European Committee for the
Service Headquarters16: Prevention of Torture (CPT) but, having
Training Center of the Prison been accompanied by an increase in the
Service, National University of Public prisonpopulation, has drawn attention
to the degree of overcrowding in the system
Service, Faculty of Law Enforcement,
(Figure 2).
Penitentiary Department.
Very few prisoners arehoused alone
Further Training and Conference in single cells. Some of new institutions,
Center of the Prison Service. such as the prison section for the life
Central Hospital of the Prison sentenced prisoners follow a policy of
Service, Forensic Psychiatric Mental locating a prisoner in a cell19.
Institution. The prison service provides the
The Museum of the Hungarian toilet paper20. Everyprisoner is able to
have a bath or shower at least once a
Prison Service.
week; those in work canshower every
In addition to these institutions, the day21. Women and juveniles are also able
set of public (prison) limited companies17 to shower every day22. Pretrial detainees
are operating under the control of Prison are given the opportunity of wearing their
Service HQ18: own clothing if it isclean and suitable;
BV Holdings Kft., sentenced prisoners must wear a prison
uniform but may usetheir own underwear
15
Annual Report 2014, pp. 88-108
16
REVIEW OF HUNGARIAN PRISON STATISTICS, The
19
Roy Walmsley, Prisons In Central And Eastern Europe,
Hungarian Prison Service Headquarters, ISSN 2416-1233, HEUNI Paper No. 22, Prisons In Central And Eastern Eu-
2016, pp.3-26 rope, The European Institute For Crime Prevention And
Control, Affiliated With The United Nations Helsinki, 2005
17
Prison limited companies are 100% state owned compa- (ISSN 1236-8245), pp. 303-3
nies, serving outstanding social and public safety interests.
The goal of the companies is to use the resources efficiently
20
The report on the visit of the Hungarian penal institutions
and even strive towards profit oriented operation in a hold- (The information was obtained during the visit of Hungari-
ing structure. an prisons by author in 2015-2016)
18
Annual Report 2014, pp. 88-108
21
Ibid.
22
Ibid.
77
LAW REVIEW 2016 5(60)
and take responsibility for washing it23. prisons budget and from public
YEARLY AVERAGE healthinsurance27. An outside hospital is
OVERCROWDING (%) used if the prison hospital does not have
the specialistrequired. There is also a
forensic psychiatric unit (IMEI) within the
grounds ofBudapest Central Prison which
is used for neurological and psychiatric
treatment and for the observation of those
suspected of being mentally ill.
HIV testing is compulsory in
Hungarianprisons and is part of Ministry
of Health regulations. It forms part of
the processof medical examination on
Figure 2 admission28. The National Ambulance
The average of these indexes is Emergency Service offered emergency
128%,which is a significant decrease care when it was needed. The HPS
(the average overcrowding was 141% also organize preventive measures like
for 2014)24.The overcrowding of prisons screenings, vaccines and protective gear29.
is mainly caused by the changes
in criminal law and the changesin
capacity (restructuring institutions Discipline and punishment
and establishing new places). During The least serious disciplinary
the last year asignificant expansion of sanction is a caution and the most serious
900 capacities took place (e.g. Middle- is solitary confinement.In maximum
Transdanubium NationalPrison security regimes, solitary confinementmay
(Martonvsr), Szombathely National be for up to 30 days, in medium security
Prison, Budapest Strict and Medium up to 20 days and in minimumsecurity
RegimePrison) and furthermore a plan up to 10 days. During this time they
has been accepted to build until 2019 one cannot receive or send parcels,cannot
prison holding 1000inmates and 8 prisons have visitors, cannot buy any items for
holding 500 inmates each and furthermore themselves, and cannot use theprisons
a prison hospital25. cultural or sport facilities either30. As part
Food and medical services of ongoing IT application development
project, an integrated criminal and
The prison authorities have disciplinary record subsystem (module)
assured us that the food they provide is was created under our updated and
a balanced dietsupplying the necessary extended human resource records31.
daily nutritional requirements26. The
quality and quantity of food is regarded
by the head of the health care department Contact with the outside world
as at least equal to average standards The legislation only states that visits,
in communal catering outside,with the both to pre-trial detainees andsentenced
variety and quantity often being superior. prisoners, shall be at least once a month,
Prison health care isfunded
from two sources: from the central
27
Roy Walmsley, Prisons In Central And Eastern Europe,
23
Ibid. HEUNI Paper No. 22, Prisons In Central And Eastern Eu-
rope, The European Institute For Crime Prevention And
24
REVIEW OF HUNGARIAN PRISON STATISTICS, The Control, Affiliated With The United Nations Helsinki, 2005
Hungarian Prison Service Headquarters, ISSN 2416-1233, (ISSN 1236-8245), pp. 303-3
2016, pp.3-26 28
Ibid.
25
REVIEW OF HUNGARIAN PRISON STATISTICS, The
Hungarian Prison Service Headquarters, ISSN 2416-1233,
29
Annual Report 2014, pp. 88-108
2016, pp.3-26 30
The report on the visit of the Hungarian penal institutions
26
The report on the visit of the Hungarian penal institutions (The information was obtained during the visit of Hungari-
(The information was obtained during the visit of Hungari- an prisons by author in 2015-2016).
an prisons by author in 2015-2016). 31
Annual Report 2014, pp. 88-108
78
International Experience
79
LAW REVIEW 2016 5(60)
youngest staff member is 19, and the and employmentprospects, and there
oldest is 71years old. The majority of is a special programme for providing
the staff belongs to the categories of 36- assistance in findingwork46. Long-term
40 and 41-45 years of age,altogether they prisoners are prepared for release during
make up almost half of the staff (more the last two years oftheir sentence47.
than 46%). The two ends of thespectrum They are placed in groups giving them
proportioned by age groups are the under more independence andthe possibility of
25 years of age (5.56%) and the above leaving the prison to find employment48.
50years of age (adding up to more than Non-governmental organizations are also
10% when aggregated). reportedto play an important part in pre-
Treatment and regime activities release preparation.
The prison administration points Prison Enterprises and Central
out that following the political changes in Procurement: Industrial enterprises are
1990the prison system ceased to attempt greatly affected by central procurement,
to change the prisoners but wanted which is a way for the government to
rather togive them the opportunity to regulate demand for the products in
change. This is seen as a long process that order to support prisoner employment.
willdevelop gradually.Each sentenced Agricultural enterprises have a stable
prisoner becomes part of an educators operational background due to the
group, the educatorbeing responsible reliable sectoral structures and subsidies
for the prisoners welfare, progress and in place. The enterprises participated in
activities. Sentenced prisoners spend 8 or government programs under the Ministry
9 hours out of their cell or room if they of the Interior by delegating experts and
havework; otherwise it is 4 or 5 hours on providing support to various programs
average45. Pre-trial prisoners are reported like the START program, public worker
tohave one hour exercise but no additional employment in a sewing factory, and
time out of their cells. document shredding49.
For social and psychological
problems it is sometimes possible to PRISONER EMPLOYMENT
makeuse of social workers, psychologists STATISTICS50
or priests.Sixmonths before release the Table1
Average of prisoners
number employed
(capita) 2012 2013 2014 2015
Employment by the prison ltd. companies 3,570 3,753 4,137 4,405
Of which employed in industrial prison 1,653 1,846 2,082 2,334
ltd. companies:
Of which employed in agricultural prison 1,917 1,907 2,055 2,071
ltd. companies:
Penitentiary employment 2,430 2,765 2,741 2,963
PPP employment 781 723 684 672
Total: 6,781 7,241 7,562 8,040
46
Ibid.
educator discusses accommodation 47
Ibid.
48
Ibid.
45
Roy Walmsley, Prisons In Central And Eastern Europe,
HEUNI Paper No. 22, Prisons In Central And Eastern Eu-
49
Annual Report 2014, pp. 88-108
rope, The European Institute For Crime Prevention And 50
REVIEW OF HUNGARIAN PRISON STATISTICS, The
Control, Affiliated With The United Nations Helsinki, 2005 Hungarian Prison Service Headquarters, ISSN 2416-1233,
(ISSN 1236-8245), pp. 303-3 2016, pp.3-26
80
International Experience
81
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82
International Experience
Schooling indicators
Academic Elementary school Secondary school Vocational training High school Total
year
Capita (%) Capita (%) Capita (%) Capita (%)
2010/2011 1,020 42.50 878 36.58 479 19.96 23 0.96 2,400
Table 3
2010 2015
Schooling Indicators
(%)
Total Male Female Total Male Female
Illiterate 1.02 0.88 2.93 0.74 0.63 2.14
Less than 8 grade 27.48 27.21 30.5 11.63 11.19 17.25
Elementary 46.28 46.41 44.42 58.32 58.58 55.11
Vocational 14.94 15.52 6.61 16.13 16.87 6.64
General Certificate of
Secondary Education
(GSCE) 7.71 7.56 9.71 9.57 9.34 12.37
University/College 2.57 2.4 4.81 2.50 2.31 4.89
N.a. 0 0 0 1.12 1.08 1.60
Table 4
recommendations and theprison is given
a copy indicating the changes that must
Inspection and monitoring 68
be made.
The prison administration organizes
The third typeof inspection
three kinds of inspection. One-third
is known as target control where
of theprisons are inspected each year,
prisons are visited in order to
involving all departments and sections of
see if they have carried out the
eachestablishment.
recommendations of the inspection or the
Second, there are thematic reviews, thematic review.
for example on health carein all prisons.
Ensuring that penal institutions
In both cases a report is produced with
function within the law is the
responsibilityof the Office of the Public
67
REVIEW OF HUNGARIAN PRISON STATISTICS, The
Hungarian Prison Service Headquarters, ISSN 2416-1233,
Prosecutor.
2016, pp.3-26 Another source of independent
inspection is the Parliamentary
68
The report on the visit of the Hungarian penal institutions
(The information was obtained during the visit of Hungari-
Commissioner for Human Rights, the
an prisons by author in 2015-2016). Ombudsman. Cases dealt with by the
83
LAW REVIEW 2016 5(60)
84
International Experience
85
LAW REVIEW 2016 5(60)
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86
International Experience
Major Sean M. Shea, USMC (Retired) quite impossible, in todays judicial system
J. D. Candidate California in America.2
Western School of Law San Diego,
California SMShea@law.cwsl.edu The 1960s saw a series of
jurisprudence from the Supreme Court
of the United States that led to the
Abstract advent of several key legal tenets that
Plea agreements, almost clich contributed to the greater implementation
in their portrayal in American film and of, and subsequent reliance on, plea
television, often seem a uniquely agreements as we know them today.
American phenomenon; in movies such Prior to this transformative period in
as A Few Good Men and The Lincoln legal proceedings, Supreme Court
Lawyer, protagonists start out as smooth- jurisprudence on this subject was
talking hired legal guns that, through a relegated to addressing exceptions and
slick negotiation style and cynical view extraordinary circumstances.3 In its 1963
of the legal system, are successful at decision in Gideon v. Wainwright, the
making these deals with little care about Supreme Court described a defendants
guilt, innocence, or the public interest. But Sixth Amendment right to legal counsel as
in both stories, these attorneys eventually being so indispensable to his assurance
see through the veneer and gain insight into of receiving a fair trial that counsel
the moral, ethical, and legal quandaries must be provided for him if he cannot
associated with a defendant bargaining afford it.4 In their landmark 1966 ruling
away his rights in exchange for a lighter in Miranda v. Arizona, the right to legal
sentence, the avoidance of a trial, or some counsel was even more broadly applied
other legal expediency. The question then by the Supreme Court and conflated
comes to mind, for both the character and with the Fifth Amendment protection
the viewer, as it so often does in society against self-incrimination.5 With the two
writ large: who really benefits from plea aforementioned cases serving to set
agreements? conditions for the increased frequency
and widespread acceptance of structured,
Introduction attorney-crafted plea agreements, 1970s
The origin of plea agreements in Brady v. United States cemented the
America is somewhat murky, but legal legitimacy of plea agreements in every
scholars generally place their beginnings, day criminal proceedings.6 In writing the
in terms of the scope, frequency, and majority opinion of the Supreme Courts
concept we know today, in the 1920s. 2
See Justin H. Dion, Prosecutorial Discretion or Contract
Prior to that time, jury and bench trials Theory Restrictions? - The Implications of Allowing Judicial
were more common, enabled by the Review of Prosecutorial Discretion Founded on Underlying
Contract Principles, 22 W. New Eng. L. Rev. 149, 161 (2000)
distinguishing characteristic that trials (Discussing the dependence of the modern American judi-
were summary proceedings,1 with many cial system on adjudication via plea agreements).
judges presiding over multiple jury trials in 3
Albert Alschuler, Plea Bargaining and Its History, 79 Colum
a single day something unheard of, and L. Rev. 1, 6 (1979).
4
Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
1
John H. Langbein, Understanding the Short History of Plea
5
Miranda v. Ariz., 384 U.S. 436, 469 (1966).
Bargaining, 13 L. & Socy Rev. 261, 263 (1979). 6
Brady v. United States, 397 U.S. 742, 751-52 (1970).
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1971 ruling in Santobello v. New York, as best the term can be applied here,
Chief Justice Warren E. Burger went on three distinct points: the charge,
the sentence, and the facts. Once the
so far as to call the practice of plea two parties have reached an accord on
bargaining an essential component of the these three points, they must submit the
administration of justice.7 agreement to the court to obtain a judges
approval in order for the plea agreement
In the years that followed, the to take effect.10
prevalence of plea agreements in criminal The judges role in plea agreements
proceedings, much like that which is is simple but vital; he or she must
determine whether the defendant knows
represented in film and television, ushered his rights, whether the defendant chooses
in a new norm. The extent of the surge in to voluntarily waive those rights, and
such pleas, and the reliance of the judicial whether there is a factual basis for a
finding of guilty on the charges in the case
system on them as a means to adjudicate even if the defendant still maintains his
the large number of criminal cases that innocence while pleading guilty.11 This role
appear before the bar in jurisdictions is critical in safeguarding the rights of the
accused by ensuring that the accused is
throughout the United States, is best not being victimized by imbalances within
summed up in a single staggering statistic: the legal system.12
up to 95% of all criminal cases in America The facts of a case that is subject
are adjudicated by plea agreements.8 to a plea agreement are generally
straightforward; they are usually either not
What Is a Plea Agreement? in dispute or the accused finds that he or
While the wording varies from one she cannot prove, or afford the expense
statutory source to another, Blacks Law of attempting to prove, his case in front of
Dictionary provides perhaps the most a jury. This highlights the role that a lack
widely accepted definition of a plea of resources, in time and money, may
agreement which best illustrates the play on both sides of any given case that
concept: can directly create incentives to seek a
[a] negotiated agreement between plea agreement. For a prosecutor, any
a prosecutor and a criminal defendant opportunity to obtain a legal victory without
whereby the defendant pleads guilty or the expenditure of scarce public funds and
no contest to a lesser offense or to one limited manpower is likely tempting, as well
of multiple charges in exchange for some as career-enhancing. For a defendant, it is
concession by the prosecutor, usually a often a less desirable choice: an elective
more lenient sentence or a dismissal of fast-tracking of their case in order to avoid
the other charges.9 legal bills, and to either avoid jail time or
The process of plea agreements get out of jail sooner than would otherwise
requires three actors: the prosecutor, be the case. 13
the defendant (usually represented by But these incentives can also lead to
defense counsel), and the court, or judge. opposite outcomes. A prosecutor can be
The prosecutor and defendant negotiate, bullied by a wealthy defendant with a team
of investigators and defense attorneys at
7
Santobello v. New York, 404 U.S. 257, 260 (1971) (The his disposal; a poor defendant is even
Chief Justice further stated that [p]roperly administered, more susceptible to maltreatment at the
[plea bargaining] is to be encouraged. If every criminal hands of a determined prosecutor with
charge were subjected to a full-scale trial, the States and enough state or federal funds to eclipse
the Federal Government would need to multiply by many
times the number of judges and court facilities.).
10
Guide For Users, 39 Geo. L.J. Ann. Rev. Crim. Proc. 1,
419-23 (2010) (Discussing the application of USCS Federal
8
Bureau of Justice Assistance, U.S. Department of Justice, Rules of Criminal Procedure Rules 11 and 13 to the court-
Plea and Charge Bargaining: Research Summary, 3 (2011). room phase of plea agreements).
9
Plea bargain, Blacks Law Dictionary (10th ed. 2014). For 11
Todd A. Berger, After Frye and Lafler: The Constitutional
an example of a state courts sample form, see Appendix Right to Defense Counsel Who Plea Bargains, 38 Am. J.
1, State of Alabama, Court E-forms, http://eforms.alacourt. Trial Advoc. 121, 168 (2014).
gov/Sample%20Forms/Plea%20Agreement.pdf (accessed
Aug. 28, 2016). For an example of a federal district courts
12
Deirdre Bowen, Calling your Bluff: How Prosecutors and
sample form, see Appendix 2, United States District Court, Defense Attorneys Adapt Plea Bargaining Strategies to In-
District of Colorado Forms and Instructions, http://www.cod. creased Formalization, 26 JUST. Q. 2, 26-27 (2009).
uscourts.gov/CourtOperations/RulesProcedures/ Forms. 13
Robert E. Scott & William J. Stuntz, Plea Bargaining as
aspx (accessed Aug. 28, 2016). Contract, 101 Yale L.J. 1909, 1912 (1992).
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International Experience
any feeble attempt he can make with bargaining; without the otherwise normal
a defense. These factors, along with pretrial motions regarding discovery and
statutory requirements, can vary greatly
from one geographic area to another, exculpatory evidence, the prosecutor has
and from one level of government to a much clearer picture than the accused
another. Add the occasional lack of true of the accuseds ability to muster an
consideration of guilt or innocence in
the decisions being made, as well as the effective, potentially charge-defeating
motives for making those decisions, and defense, especially if the accused is
the ramifications of the plea agreement actually innocent.18
process can become quite troubling.
What is also clear, as illustrated by
Ethics In Plea Agreements recent nationwide statistics examining
Socioeconomics make an plea agreements across all levels of
undeniable difference in the type of justice the American legal system, is that
people receive; faced with an already plea agreements, although skewed in
disproportionate enforcement of laws and socioeconomic impact, are still often the
subsequent charging rates for crimes, most practical and relatively desirable
disadvantaged groups are already more outcome given the usually harsher outcome
likely to find themselves in the position achieved through a jury trial.19 While this
of having to consider a plea agreement.14 is encouraging news to proponents of
Add to that the higher conviction rates and plea agreements, this also spotlights the
harsher sentencing that these same groups reality of system-wide bias against those
face if they go to trial,15 one can see why disadvantaged socioeconomic groups
the decision to accept a plea agreement is once they are ensnared, appropriately
virtually reinforced by the criminal justice or not, in the American criminal justice
system. The decision can often be thrust system. The problem is not plea
upon already at-risk members of society, agreements themselves; rather, they are
resulting in a subtle form of coercion; if an but a part even an outgrowth of and
unscrupulous prosecutor leverages this manner of efficiently dealing with of
perception during a negotiation the nature the systemic bias that disproportionately
of the process is blatantly coercive.16 impacts those who are already the most
Unless the accused has the means vulnerable in society.
to afford a team of defense attorneys When considering the impacts of
and private investigators, the prosecutor coercion and bias on the plea agreement
holds the clear majority of power in the process, the importance of the judges
equation. Additionally, his priorities are role emerges as an indispensable judicial
often career- and politically-motivated.17 review mechanism that often is the best
Most commonly seen is the prosecutors and last chance of ensuring fairness
need to at least appear to the public to be and transparency where the accused
tough on crime, sometimes with very little has already forfeited key Constitutional
attention given to whether the accused is safeguards.20
actually guilty of the crime, thus enhancing
the perception and very real sense of Serving the Public Interest
coercion in the process. Prosecutors also Thomas Jefferson once wrote that
frequently benefit from the informational trials are vital to the protection of citizens
imbalance that exists during plea rights from the power of the state; that they
14
U.S. Dept of Justice, supra note 8, at 2-3. 18
Erica Hashimoto, Toward Ethical Plea Bargaining, 30 Car-
15
Id. dozo L. Rev. 949, 951-52 (2008).
16
Ronald Wright & Marc Miller, The Screening/Bargaining 19
U.S. Dept of Justice, supra note 15.
Tradeoff, 55 Stan. L. Rev. 29, 33 (2002). 20
Sanford I. Weisburst, Judicial Review of Settlements and
17
Stephanos Bibas, Plea Bargaining Outside the Shadow of Consent Decrees: An Economic Analysis, 28 J. Legal Stud.
Trial, 117 Harv. L. Rev. 2463, 2470-71 (2004). 55, 58 (1999).
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were one sure way to force the state to be the American criminal justice system.25
transparent in its exercise of power, and Serving the public interest is a
to do so in accordance with the provisions significant tenet of jurisprudence that has
of the Constitution.21 So strongly did been specifically addressed, and there
Jefferson and the other founders believe are binding precedents that require judges
this idea that it was later written into the to consider this when deciding whether
Constitution of the United States as to accept or reject a plea agreement
one of the legal protections afforded either as a whole or in part.26 When
under the Sixth Amendment.22 More applied effectively and consistently, such
recently, however, legal scholars have principles can further temper the process
written about the societal benefits of plea and ensure dispassionate and efficient
arrangements, specifically the efficiency adjudication of criminal cases. This in turn
created in an already overburdened legal serves to foster the public trust in judicial
system.23 proceedings. There are also other second-
What, then, should be done with order effects of the effective use of plea
the practice of plea agreements, where agreements that shore up other areas
one surrenders their Fifth and Sixth of the law. What the majority of scholars
Amendment protections as a means appear to agree on is that the wide
of judicial expediency? The incentive spread use of plea agreements keeps
to serve the public interest via efficient
the criminal trial case load manageable
adjudication methods must be squared
with the inherent flaws that work against to the point that they effectively maintain
another important aspect the public the judicial integrity of the criminal trials
interest: safeguarding the rights of the that do take place; were plea agreements
accused. While there are some that argue to be abolished, overloaded trial courts
for the need to abolish plea agreements would naturally seek other efficiencies
altogether due to the coercion and bias that would ultimately render trials much
that are inherent in the process,24 this less protective of the rights of the accused
is also largely seen as unrealistic. Plea than is the case with the plea agreements
agreements are viewed by many as a that are in practice today.27
solution to a certain problem; where most
disagreement among jurists and scholars
Conclusion
seems to arise is whether plea agreements
have become their own problem, and if When facing criminal charges in
there is a need for them to be or through the American legal system, the very real
which manner they can be improved or disadvantage of the poor and certain
corrected. Many argue that it must be the minority groups should not be conflated
reforms that address these shortcomings with the very real advantage of the wealthy
that will have to shore up the rights of the in terms of seeking the best possible
accused in what is generally regarded as outcome. The incentivized actions that
a rational and necessary process within each of these socioeconomic groups has
at their disposal diverges significantly, and
are a world apart in terms of achievable
21
Thomas Jefferson, Letter to Thomas Paine (Jul. 11, 1789) outcomes. Where a poor person is faced
(may be viewed at http://founders.archives.gov/ documents/
Jefferson/01-15-02-0259). 25
Robert E. Scott & William J. Stuntz, Plea Bargaining as
22
USCS Const. Amend. 6. Contract, 101 Yale L.J. 1909, 1926 (1992).
23
See Fred C. Zacharias, Justice in Plea Bargaining, 39 26
Ellis v. United States Dist. Court (In re Ellis), 356 F.3d
Wm. & Mary L. Rev. 1121, 1129 (1998) (A settlement is 1198, 1209 (9th Cir. 2004) (A federal district court may reject
societally efficient, compared to the alternative of requiring a plea agreement if it believes the sentence related to a ne-
each party to keep what they have; namely, their chance of gotiated charge is inadequate in serving the public interest).
winning at trial, with all attendant risks and benefits.). 27
Robert E. Scott & William J. Stuntz, A Reply: Imperfect
24
Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Bargains, Imperfect Trials, and Innocent Defendants, 101
Yale L.J. 1979, 2009 (1992). Yale L.J. 2011, 2013 (1992).
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International Experience
with a decision that may have them plead compromised, in the course of negotiating
guilty to a crime in order to receive a lesser a deal. The single fact that so many plead
charge and reduced sentence, even if guilty to crimes they did not commit, solely
innocent of that crime, a wealthy person for the sake of extricating themselves from
will likely pour resources into fighting the the criminal justice system in which they
have become ensnared, illustrates how
charge and have a very good chance
the public interest is not being adequately
of receiving a lesser charge, reduced served and that reforms are necessary.
sentence, or outright acquittal, even if Abolishment of plea arrangements is not
they are in fact guilty of that crime. This is the answer; nor is maintaining the status
how the inherent bias and coercive effects quo. The answer, as is so often the case
of the plea agreement system play out with the truth, lies somewhere in between.
in millions of cases annually across the What the current state of the
United States. This is where the scales American criminal justice system shows
of American justice can sometimes be is that plea agreements are necessary,
unbalanced. and that they can be concluded without
While there are flaws in the existing violating the rights of the accused. But this
implementation of plea agreements comes with a warning: as with all human
throughout the United States, there is systems and processes, adequate and
also a near-universal sentiment that plea effective safeguards must be in place to
agreements are necessary in order to
prevent biases from negatively influencing
prevent the inundation of American courts
with an unmanageable number of trials outcomes. Effective oversight and
and the subsequent loss of what judicial unyielding vigilance must also be in place
integrity there is to be seen in the trials to ensure that these deals do their part to
that do take place. The accused, the sustain the publics faith in any criminal
prosecutor, and even the public interest justice system in which plea agreements
all compromise, or are to some degree are made an integral part.
APPENDIX 1
Sample Form 21
PLEA AGREEMENT
______________________
State of Alabama Case Number
Municipality of
_________________________ STATE OF ALABAMA
v. In the ____________________Court
_________________________ of ______________________ County
Defendants [The City/Town of
_______________________________]
After discussion and negotiation between the parties, after a full explanation of rights
has been given to defendant as evidenced by the attached Explanation of Rights form,
and after such disclosure of information between the parties as each deems sufficient, it
is agreed in this case, subject to acceptance by the Court, that:
1. Defendant will enter a plea of guilty:
As charged in the complaint/information/indictment.
To the charge of ,
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and the Prosecutor will move for dismissal with prejudice of all other offenses
charged in the compliant/information/indictment.
2. The prosecutor will recommend to the Court that the defendant by given a
sentence of .
The prosecutor will not oppose the Courts giving the defendant a sentence of
.
3. The prosecutor will recommend to the Court that the sentence given to
defendant by the Court be suspended and the defendant be placed on probation
for a period of .
The prosecutor will not oppose the Courts suspending the sentence given to
defendant and placing defendant on probation.
4. (Any other matters agreed upon.)
Signature of Prosecutor
Having reviewed the above agreement entered into by defendant and the prosecutor,
and having reviewed the presentence report, the Court hereby:
Notice to Defendant
Since the agreement has been rejected, your may withdraw your offer to the
prosecutor to plead guilty to the charged offense. If you do decide to plead
guilty, the disposition of the case may be either more of less favorable to you
than contemplated in the agreement.
The Court will allow the prosecutor to change his recommendation and the parties
may submit further plea agreements for the Courts consideration.
_________________ _______________________________________
Date Judge
Rule 14.3
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International Experience
APPENDIX 2
v.
1.
Defendant(s).
_________________________________________________________________
PLEA AGREEMENT
_________________________________________________________________
The United States of America (the government), by and through _____________,
Assistant United States Attorney for the District of Colorado, and the defendant,
____________________, personally and by counsel, ____________________,
submit the following Plea Agreement pursuant to D.C.COLO.LCrR 11.1.
I. AGREEMENT
insert here.]
II. ELEMENTS OF THE OFFENSE(S)
The parties agree that the elements of the offense[s] to which this plea is being
tendered are as follows:
[Set forth each element required by law for the commission of each criminal offense
The maximum statutory penalty for a violation of ______ U.S.C. ______ is: not more
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International Experience
imposition of a sentence in this matter the convictions or facts which are believed
is gov-erned by 18 U.S.C. 3553. In to trigger the adjustment and include the
determining the particular sentence to be final offense level and/or criminal history
imposed, the Court is required to consider category.]
seven factors. One of those factors is the H. The advisory guideline range
sentencing range computed by the Court resulting from these calculations is
under advisory guidelines issued by the _______ months. However, in order to be
United States Sentencing Commission. In as accurate as possible, with the criminal
order to aid the Court in this regard, the history category undetermined at this
parties set forth be-low their estimate of time, the offense level(s) estimated above
the advisory guideline range called for by could conceivably result in a range from
the United States Sen-tencing Guidelines. ________ months (bottom of Category I)
To the extent that the parties disagree to ________ months (top of Category VI).
about the guideline computa-tions, the The guideline range would not exceed,
recitation below identifies the matters in any case, the cumulative statutory
which are in dispute. maximums applicable to the counts of
A.The base guideline is _________, conviction.
with a base offense level of _______. I. Pursuant to guideline 5E1.2,
B. [Insert specific offense assuming the estimated offense level
characteristics.] above, the fine range for this offense would
C. [Insert victim-related, role-in- be $ _______________ to $__________,
offense, obstruction and/or multiple- count plus applicable interest and penalties.
adjustments.] J. Pursuant to guideline 5D1.2, if
D. The adjusted offense level the Court imposes a term of supervised
therefore would be ______________. release, that term is [insert if applicable:
E. [Insert the parties positions at least ______ years, but] not more than
on the adjustment for acceptance of _______ years.
responsibility.] The resulting offense level K. Describe any restitution orders or
therefore would be ______________. conditions required by guideline 5E1.1.]
F. The parties understand that the
The parties understand that although
defendants criminal history computation
the Court will consider the parties
is tentative. The criminal history category
estimate, the Court must make its own
is determined by the Court based on the
determination of the guideline range. In
defendants prior convictions. Based on
doing so, the Court is not bound by the
information currently available to the
position of any party.
parties, it is estimated that the defendants
No estimate by the parties regarding
criminal history category would be
the guideline range precludes either party
______________.
from asking the Court, within the overall
G. The career offender/criminal
context of the guidelines, to depart from
livelihood/armed career criminal
that range at sentencing if that party
adjustments [would or would not] apply. [If
believes that a departure is specifically
any of these adjustments applies, identify
authorized by the guidelines or that
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there exists an aggravating or mitigating the Court accepts the plea agreement.
circumstance of a kind, or to a degree, not Alternatively, if the Court determines that
adequately taken into consideration by the it intends to impose a sentence different
United States Sentencing Commission from that agreed to by the parties as part
in formulating the advisory guidelines. of this agreement, the Court must first give
Similarly, no estimate by the parties the parties an oppor-tunity to withdraw
regarding the guideline range precludes from this agreement before it may impose
either party from asking the Court to vary any such different sen-tence.]
en-tirely from the advisory guidelines VII. ENTIRE AGREEMENT
and to impose a non-guideline sentence
This document states the parties
based on other 18 U.S.C. 3553 factors.
entire agreement. There are no other
[Adjust or delete language to account for
promis-es, agreements (or side
any Rule 11 (c) (1)(C) agreement or other
agreements), terms, conditions,
agreement as to departures or variances.]
understandings, or assur-ances, express
The parties understand that the
or implied. In entering this agreement,
Court is free, upon consideration and
neither the government nor the defendant
proper ap-plication of all 18 U.S.C.
has relied, or is relying, on any terms,
3553 factors, to impose that reasonable
promises, conditions, or assurances not
sentence which it deems appropriate in
expressly stated in this agreement.
the exercise of its discretion and that such
sentence may be less than that called for
Date: ___________________________
by the advisory guidelines (in length or
[insert name]
form), within the advisory guideline range,
Defendant
or above the advisory guideline range up
Date: ____________________________
to and including imprison-ment for the
[insert name]
statutory maximum term, regardless of
Attorney for Defendant
any computation or position of any party
Date: ____________________________
on any 18 U.S.C. 3553 factor. [Insert if
[insert name]
Rule 11(c)(1)(C) agreement: However,
because this plea agreement is made
pursuant to Rule 11 (c)(1)(C), the Court
Revised: 04/25/2012
is bound by the parties agreement once
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