Mongolia

From Criminal Defense Wiki
Jump to: navigation, search

Type of System

Mongolia has a civil law system based on a codification of laws. International treaties that have been ratified by the Mongolian government form part of Mongolian law. The main Mongolian statutes are also supplemented by regulations, parliamentary and cabinet resolutions, presidential decrees, rules and orders.

Sources of Defendant's Rights

Defendants’ rights in criminal proceedings are found throughout the Criminal Procedure Law of Mongolia. On 18 November 1974, Mongolia acceded the International Covenant on Civil and Political Rights. As a party to this Covenant, Mongolia is bound to respect the civil and political rights contained therein. Specifically, Article 14 recognizes and protects a number of due process rights of the accused, including equality before the law; right to a fair and public trial by a competent, independent and impartial tribunal; right to be presumed innocent until proven guilty; right to notice of charges; right to a speedy trial; right to counsel; right to examine the witnesses against him; right against self-incrimination; right to appeal; and freedom from double jeopardy.

Pre-trial Procedures

Police Procedures

Complaint/Information

The Criminal Code of Mongolia imposes certain amount of fines and imprisonment for failure to inform a relevant authority or official about a certain committed crime or a crime that it being prepared to be committed. Such crimes include: intentional infliction of a severe bodily injury, kidnapping, taking of hostages, rape in aggravating circumstances, theft in aggravating circumstances, taking away of other’s property in aggravating circumstances, fraud in aggravating circumstances, misappropriation and embezzlement of other’s property, robbery, forgery of banknotes and securities, banditry, hijacking, giving, accepting or facilitating of a bribe in aggravating circumstances, high treason, espionage, act of terrorism against a State or public figure, plotting with a view to seize the State power and sabotage shall be punishable by a fine equal to 51 to 80 amounts of minimum salary, or by incarceration for a term of 1 to 3 months. [1]

Arrest

Under the Criminal Procedure Law of Mongolia, a suspect may be arrested if he/she has attempted to escape or if there is sufficient evidence to suspect him/her committing a grave or an extremely grave crime.[2]

An inquiry officer or investigator shall be obliged to draw up a decree of arrest for a person suspected of committing a crime, and shall present it to a prosecutor. The prosecutor shall then submit the decree to the court for approval.[3] In instances not permitting a delay, the decree may also be submitted to a prosecutor and court within 24 hours after the arrest.[4] The decree shall specify grounds and reasons for the arrest, place and time, the results of a body search and be presented to the suspect.

The court shall be obliged to issue an order to arrest the suspect under guard as soon as possible after and in any case within forty-eight hours from the moment of receiving the decree of arrest.[5] If, after seventy-two hours of the arrest, no decision by court to confine the person under guard is received, a chief of detention center shall notify the inquiry officer, investigator, prosecutor and court of this fact and release the person.[6]

The person under arrest may lodge a complaint to an inquiry officer, investigator prosecutor or court, in which case the administration of detention or confinement center shall be obliged to deliver the complaint to the addressee within 24 hours.[7] The complaint shall be reviewed and resolved within 14 days by an official who has received the complaint, or within 21 days if there is a need to examine additional materials or to take other measures.[8]

Pre-trial Detention

Article 60.2 of the Criminal Procedure Law of Mongolia specifies that the person under arrest must be released if no decision by court to confine the person under guard is received after expiration of seventy-two hours of arrest.

Searches

Search of items, documents and body is permitted with a decree issued by an inquiry office or an investigator if there are sufficient grounds to believe that these are significant for reviewing and resolving a case . Seal of property may be conducted simultaneously with a search.[9]

Search of body is also permitted without a decree in the following circumstances[10]: when arresting a person or if there are sufficient grounds to believe that a person who is present at the premises or other places where a seizure or search is being executed is concealing on his/her body an item or a document significant to a case.

When property or documents are being seized or searched, a third party witness, the owner of the property or documents are being seized or searched, an adult member of his/her family, his/her defense counsel or any one of them shall be present during the seizure or the search.[11]

Interrogation

A witness, victim or suspect and accused may be summoned for interrogation with a subpoena.[12] In case the person to be interrogated disappears without respectful reasons, such person shall be coerced to come for interrogation.[13] An interrogation shall be carried out continuously for not longer than 4 hours and if it is going to take longer than that, a one-hour break shall be allowed.

An interrogation shall not last longer than 8 hours in total at a time.[14] A record and testimony shall be made after the interrogation[15] and a special note shall be made on the record if the interrogated person refuses to sign the record.[16]

Article 149 of the Criminal Procedure Law of Mongolia also permits the confrontational interrogation between previously interrogated persons. If there are serious differences in the testimonies of persons other than a suspect or accused, then the testimonies of such people can be confronted in their presence. Such people will be asked whether they know each other and their relation to each other at the beginning of the interrogation.

The way an interrogation has to be conducted is set out in the Article 144 of the Criminal Procedure Law of Mongolia. A person under interrogation shall be explained beforehand the purpose of the interrogation and his/her rights and duties, and a note to such effect shall be made in the record. A witness or victim that is being interrogated shall be reminded in writing of the consequences for giving deliberately false testimony or refusing to give a testimony.

Enforcing the rules against illegal interrogation

Article 144.6 of the Criminal Procedure Law of Mongolia prohibits the use of leading or urging questions to a person under interrogation. Upon completion of an interrogation, the interrogated person shall be presented the record and read or be read the record. The interrogated person shall then sign the record after certifying that the testimony is correctly recorded.

Right to counsel

The right to receive legal assistance by the citizen is safeguarded by Article 16 of the Constitution of Mongolia.

Article 39 of the Criminal Procedure Law of Mongolia guarantees every suspect, accused, defendant and victim the right to select defense counsel himself/herself. It further permits the suspect, accused, defendant or victim who has not selected a defense counsel to be provided by a defense counsel by the inquiry officer, investigator, prosecutor or the court upon his/her request.

Rights of the Accused at All Times

Right to Counsel

Double Jeopardy

Mongolia acceded the International Covenant on Civil and Political Rights on 18 November 1974. As a party to this Covenant, Mongolia is bound to respect the civil and political rights contained therein. Article 14 of the Covenant specifically recognizes and protects the freedom from double jeopardy. However, the freedom from double jeopardy is not specified in the law of Mongolia.

Legality Principle

Legality principle prohibits convicting a person of violating a law that was not in force at the time of the commission of the act for which the person was charged. This principle is enshrined in Article 3.2 of the Criminal Procedure Code of Mongolia.

Presumption of innocence

The right to be presumed innocent until proven guilty is guaranteed by Article 16 of Constitution of Mongolia. It is then further reinforced by Article 4 of the Criminal Code of Mongolia and Article 13.1 of the Criminal Procedure Law of Mongolia.

Procedure without witnesses

Article 45 of the Criminal Procedure Law of Mongolia stipulates a witness's obligation to arrive as summoned by an inquiry officer, investigator, prosecutor and court and give the true testimony regarding the case. The inquiry officer, investigator, prosecutor and court have the authority to make the decision to have the witness who does not arrive without respectful reason be coerced by police agency. A witness also has the right to refuse to give testimony against family members, parents and children.

Articles 266, 267 and 268 of the Criminal Procedure Law further detail the court procedure with regards to a witness. The testimony of the witness shall be heard after hearing the testimony of the victim in the court. The witness shall be explained his/her duty to give true and correct account of all circumstances of the case known to him/her and be reminded of the consequences for refusing to give testimony or for giving deliberately false testimony. A note to such effect shall be made in the record which shall be signed by the witness.

Capital punishment

Capital punishment has been abolished in Mongolia since on 13 March, 2012, when the country acceded without reservations to the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims at abolishing death penalty. However, the abolition of death penalty is still yet to be reflected in the relevant laws of Mongolia.

Fair Trial Rights

Freedom from prolonged pre-trial detention

Article 60.2 of the Criminal Procedure Law of Mongolia provides that a person under guard shall be released if no decision by the court to confine the person is received by the chief of detention center after expiration of 72 hours of arrest. The arrest period shall be calculated from the moment of presenting the decree or order of arrest to the suspect.

Right to counsel

The right to receive legal assistance by the citizen is safeguarded by Article 16 of the Constitution of Mongolia. It is further detailed by Article 39 of the Criminal Procedure Law of Mongolia.

Right to notice of charges

This right is provided in Article 196.2 of the Criminal Procedure Law of Mongolia.

Right to independent and impartial court

This right is guaranteed by Article 49 of the Constitution of Mongolia. It is also reinforced in Article 15 of the Criminal Procedure Law of Mongolia.

Right to a fair trial

The right is guarantee by Article 16 of the Constitution of Mongolia.

Right to non self-incrimination

Article 16 of the Constitution of Mongolia prohibits coercing someone to testify against himself/herself. Article 16 of the Criminal Procedure Law of Mongolia further details the right by prohibiting the inquiry officer, investigator, prosecutor or the court from demanding the suspect, accused or defendant to testify against themselves or from using pressure or force in order to retrieve testimony.

Freedom from punishment

Article 16 of the Constitution of Mongolia guarantees that "no person shall be subjected to torture, inhumane, cruel or degrading treatment". The right is further reinforced by Article 7 of the Criminal Law and Article 10 of the Criminal Procedure Law of Mongolia, which contains the principles of habeas corpus.

Right to appeal

The right to appeal is guaranteed by the Article 16 of the Constitution of Mongolia. The right is further addressed in the Criminal Procedure Law of Mongolia, Article 303 of which specifically grants the following person with the right to appeal: (a) a convict, victim, their defense counsel and legal representatives shall have the right to file an appeal against a decree of a court and the state prosecutor or a prosecutor of a higher instance shall have a right to write a protest on the decree; (b) a civil plaintiff, civil defendant, and their representatives shall have the right to file an appeal only on respective part of the court decree that relates to the civil suit that is related to the criminal trial. (c) a person acquitted by a court shall have the right to file an appeal against the reasons and grounds of the acquittal specified in the decree of acquittal.

Court Procedures

Pre-trial

Initial court appearance

A criminal case shall be initiated by a decree issued by an inquiry officer, investigator or prosecutor.[17] The court proceeding commences when judge asks for the accused to be brought to the trial and announces a date for holding the judicial session.[18] Prior to rendering the ruling to bring the accused to trial, the judge must conclude that rights of the participants in criminal proceedings set forth in the Criminal Procedure Law have been fully respected during the process of inquiry or investigation and there are no grounds that hinder consideration of the case in judicial session.

Trial

The procedure for a trial before the court is provided in chapters thirty-two to thirty-six of the Criminal Procedure Law of Mongolia. A trial shall be chaired by a Chief Judge or a judge appointed by the Chief Judge.[19]

The chair of the trial shall open the session and announce which case is subject to review and resolution.[20] The chair of the trial shall then explain the duties to the translator and /or interpreter, establish the identity of the defendant and announce the composition of the court. The chair shall make sure that the witness is not present at the trial until his/her testimony is heard.

The trial shall then commence with the proclamation by the state prosecutor of the decree to prosecute the accused and the conclusion to indict. The defendant will then be asked if he/she will give testimony and if agrees shall testimony. After the defendant has given the testimony, the prosecutor first and then the defense counsel shall put questions. The judge may ask questions at any time, while the citizens' representatives, the parties and the participants may put questions to the defendant with the permission of the chair of the trial. The victim's testimony shall be heard after hearing the testimony of the defendant, followed by the hearing of the testimony of the witness(es). Physical evidence may be examined at any moment by the court at the trial.

Oral argument shall be heard after completion of examination of all the evidence and testimony. Oral arguments of judicial session shall consist of speeches of the prosecutor, defense counsel or the defendant if a defense counsel has not participated in the judicial session, as well as of the victim, civil plaintiff, civil defendant and their representatives. The defendant shall be granted the right of last word. Questions on the defendant's last speech shall not be permitted by the court and the court may not limit the duration of the last word to a certain period of time.

The court shall retire for conference to issue a decree after hearing the last word of the defendant and a decree of either conviction or acquittal will be then issued by the court.

Expert witnesses

According to Article 46 of the Criminal Procedure Law of Mongolia, experts from appropriate organizations, persons possessing special knowledge and without any personal interests in the case may be appointed as experts by decree of the inquiry officer, investigator, prosecutor or court or by order of a judge for the purposes of carrying out examinations and delivering conclusions.

During the trial, an expert shall participate in the analysis of items relevant to the case.[21] If a witness or expert does not appear at a judicial session, the court shall issue a degree or order on continuation of examination of the case or postponing it, after questioning the state prosecutor, defendant, defense counsel, victim, civil plaintiff, civil defendant or their representatives whether the case may be subject to judicial examination in the absence of the expert.[22]

Jury

There is no jury system in Mongolia, but "citizens representatives" consisting of three citizens (in case the trial is being heard by three judges) can be present at a first instance trial and ask questions to the trial participants as well as give its opinion in writing. Such opinion can be read out during the trial. If the citizens representatives have differing opinions, then separate opinions can be issued by each of them.[23] A judge is not bound to follow the opinion of the citizens representatives.

Sentencing

A decree shall take legal effect if an appeal or protest has not been brought within 14 days after the decree has been handed to the convicted or acquitted person.[24] In the event that an appeal or protest has been brought, the decree shall take legal effect from the moment the ruling of the court of appellate instance has been made.[25]

A decree of a court or order of a judge shall be executed upon expiration of time period for bringing an appeal or a protest. A decree of a court and order of a judge which are not subject to appeal or protest shall be executed immediately upon being rendered.[26]

A decree sentencing a convict to be confined under guard to arrest or imprisonment sentence shall be sent within 5 days to a Center of Confinement or to an administration of place for imprisonment and a prosecutor shall be notified to such effect.

Decree sentencing conviction in the form of fine, deprivation of the right to occupy specific official position or engage in specified activity, confiscation of property and compulsory works, shall be sent to appropriate decision enforcement agency in charge of execution of the decision and a prosecutor shall be notified to such effect.

Appeal

Article 303 of the Criminal Procedure Law of Mongolia grants the following person with the right to appeal: (a) a convict, victim, their defense counsel and legal representatives shall have the right to file an appeal against a decree of a court and the state prosecutor or a prosecutor of a higher instance shall have a right to write a protest on the decree; (b) a civil plaintiff, civil defendant, and their representatives shall have the right to file an appeal only on respective part of the court decree that relates to the civil suit that is related to the criminal trial. (c) a person acquitted by a court shall have the right to file an appeal against the reasons and grounds of the acquittal specified in the decree of acquittal.

The appeal shall be filed with the Aimag or Capital City Court within 14 days after the decree has been handed to the convicted or acquitted person.[27] The appeals and protests shall be filed through the court which issued the decree.[28] The Chief Judge of the Aimag or the Capital City shall receive and allocate the case submitted on appeal or protest to the court of appellate instance.[29] The court shall notify parties in relation to the appeal immediately, and shall deliver the appeal to the Aimag or Capital City Court with the case materials within 3 days from the receipt of the appeal and shall suspend the execution of the decree.[30] The prosecutor, defense counsel, the sentenced or acquitted person, victim, as well as civil plaintiff, civil defendant and their representatives shall have a right to participate in the judicial session.[31]

The person who has filed an appeal shall explain the grounds of his/her appeal or protest. The court shall examine the supplementary evidence, and hear the participants' explanations and the conclusion of the prosecutor and additional explanations of the sentenced or acquitted person and his defense counsel.[32]

The appellate instance the court shall render one of the following rulings[33]: (a) to leave the decree unchanged; (b) to annul the decree and refer the case to a prosecutor for carrying out supplementary inquiry or investigation or for consideration at a judicial session of the first instance; (c) to annul the decree and terminate the case; or (d) to make changes to the decree.

Emergency Law

Under Article 19 of the Constitution of Mongolia, in case of announcement of a state of emergency or martial law, human rights and freedoms as determined by the Constitution and other laws shall be subject to limitation only by law. The declaration of state of emergency or martial law shall not affect the right to life, the freedom of thought, conscience and religion, as well as the right not to be subjected to torture, inhuman and cruel treatment.


References

  1. Article 246, Criminal Code of Mongolia.
  2. Art. 58.1, Criminal Procedure Law of Mongolia.
  3. Id., Art. 59.1
  4. Id., Art. 59.5
  5. Id., Art. 59.6
  6. Id., Art. 60.2
  7. Id., Art. 108.1
  8. Id., Art. 112.2
  9. Id., Art. 134.2
  10. Id., Art. 135.2
  11. Id., Art. 134.2
  12. Id., Art. 143.1
  13. Id., Art. 143.5
  14. Id., Art. 142.2
  15. Id., Art. 146.1 and Art. 146.2
  16. Id., Art. 154.1
  17. Art. 173, Criminal Procedure Law of Mongolia
  18. Id., Art. 228
  19. Id., Art 237
  20. Id., Art 254
  21. Id., Art. 271.1
  22. Id., Art. 245.1
  23. Id., Art. 34
  24. Id., Art. 327.1
  25. Id., Art. 327.2
  26. Id., Art. 328
  27. Id., Art. 304.1
  28. Id., Art. 304.3
  29. Id., Art. 310.1
  30. Id., Art. 306.1
  31. Id., Art. 311.1 and Art. 312.1
  32. Id., Art. 313.2
  33. Id., Art. 315.1



See Criminal Justice Systems Around the World