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'Fair trial standards' in document 'Mongolia - Criminal Procedure Code'

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More information about the document 'Mongolia - Criminal Procedure Code'
The relevant provisions of implementing legislation: [1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18]
The Relevant Provisions of the Rome Statute

RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

PART I
GENERAL PROVISIONS

CHAPTER TWO
TASKS AND PRINCIPLES OF CRIMINAL PROCEEDING

Article 6. Tasks of Criminal Proceedings

6.1. The tasks of criminal proceedings of Mongolia are the speedy and complete clearance of
crimes, identification of offenders, fair imposition of respective convictions to each individuals who committed the crimes, and ensuring the fact that any innocent person shall be presumed not guilty.

PART I
GENERAL PROVISIONS

CHAPTER TWO
TASKS AND PRINCIPLES OF CRIMINAL PROCEEDING

Article 10. Ensuring the Right for Inviolability of Person

10.2. It shall be prohibited to keep any body in medical institutions for tests without a procurator's or
judge's sanction or to confine under guard without a judge's sanction.

10.3. Procurators shall have the duty to immediately release persons illegally arrested or confined
under guard, or serving imprisonment sentences or kept in medical institutions, or serving excessive terms on top of those provided by law or a court decision.

10.4. It shall be prohibited to torture, to treat inhuman or cruel way any body and to insult his/her
reputation.

10.5. During arrest of a suspect he/she shall be informed on the reason and grounds for the arrest,
and reminded his/her right to have an defense counsel, to defend him/herself, to lodge a complaint to court and not to give testimony against him/herself.

PART I
GENERAL PROVISIONS

CHAPTER TWO
TASKS AND PRINCIPLES OF CRIMINAL PROCEEDING

Article 13. Presumption of Innocence

13.1. No one maybe deemed guilty of committing a crime until a judgement of a court is issued.

13.2. If there is a doubt in guilt of a suspect, accused or defendant, or interpretation or application of
the Criminal Law[2] and this Law even though all evidence relevant to the case were considered, these shall be settled in favor of the suspect, accused or defendant.

PART I
GENERAL PROVISIONS

CHAPTER TWO
TASKS AND PRINCIPLES OF CRIMINAL PROCEEDING

Article 16. Thorough, Complete and Objective Determination of Circumstances of Case.

16.1. Inquiry officer, investigator, procurator and court shall be obliged to take all measures provided
by law for a thorough, complete, and objective proof of the circumstances of the case to determine circumstances tending both to convict and to acquit the accused or defendant as well as those tending to aggravate and to mitigate his/her guilt.

16.2. Inquiry officer, investigator, procurator and court shall not have the right to demand the
suspect, accused or defendant to prove their innocence themselves.

16.3. It shall be prohibited for inquiry officer, investigator, procurator and court to demand from the
suspect, accused or defendant to make testimony against themselves or to use pressure or force in order to retrieve testimony.

16.4. It shall be also prohibited to demand from a member of the family, parents or children of the
suspect, accused or defendant to testify against them.

16.5. If the person described in Article 16.4. of this law requests to give a testimony, the testimony
shall be heard after he/she is explained on his/her right to refuse from giving testimony and the provision of Article 254 of this Law is reminded.

Article 17. Executing Judicial Proceedings Based on Equality of Parties and Adversarial Principles

17.1. The judicial examination shall be based on adversarial litigation between prosecuting and
defending parties with equal rights.

17.2. Procurators shall have the duty to prove the charges presented to defendants.

17.3. Defense counsels shall use all the tools provided by law in order to defend the defendant and
render legal assistance.

17.4. The parties shall be equal in participating in the analysis of the evidence, submitting requests,
and expressing their opinions regarding any aspects relevant to the case.

Article 18. Ensuring the Right of Suspect, Accused, Defendant and Victim to be Defended

18.1. Suspect, accused, defendant and victim shall have the right to defend and to be defended
themselves and to receive other legal assistance.

18.2. In circumstances provided by Article 40 of this Law, inquiry officer, investigator, procurator and
court shall have the mandatory duty to provide suspect, accused, defendant and victim with possibility to be defended.

Article 19. Language in Which Proceedings Shall be Executed

19.1. Judicial proceedings shall be executed in Mongolian language and shall be documented in script
of official carry out of the State business.

19.2. If persons participating in criminal proceeding do not have command of Mongolian language
then through his/her mother tongue or languages and scripts known to him/her or if mute or deaf then with the help of gestures and special signs and translator, interpreter shall be provided with the right to give testimony, to submit complaint, to make speech in court and to get introduced with all materials of the case.

PART II
PARTICIPANT IN THE CRIMINAL PROCEEDING

CHAPTER FIVE
PARTICIPANTS IN PROCEEDINGS TO PROTECT THEIR OWN INTERESTS OR INTERESTS OF REPRESENTING PERSONS

Article 35. Suspect

35.2. The suspect shall have the following rights:

35.2.1. to know for what crime he is being suspected;

35.2.2. to be presented with decree on initiation of a case against him/her, on his/her arrest, and on taking measures of restraints against him/her;

35.2.3. to present evidence and submit petition requiring examination of evidence;

35.2.4. to give a testimony or refuse to give a testimony;

35.2.5. to give a testimony in his/her own language or make use of a translator, interpreter;

35.2.6. to submit challenges with regard to inquiry officer, investigator, procurator, translator,
interpreter and expert;

35.2.7. to make self-defense; to have an defense counsel as provided for in Article 39 of this Law;

35.2.8. to have individual meeting with his/her defense counsel;

35.2.9. to participate in criminal proceedings with the permission of inquiry officer or investigator;

35.2.10. to lodge complaint regarding the actions and decisions of the inquiry officer, investigator or procurator;

35.2.11. to require to be compensated for damages occurred due to activities of an inquiry officer, investigator, or procurator in violation of law.

35.3. Suspect shall not bear the duty to give testimony against him/herself or to prove his/her
involvement in a crime or other circumstances of a crime.

35.4. An inquiry officer or investigator shall inform the suspect immediately and an adult member of
family or defense counsel within 48 hours on what crime he/she is suspected.

PART II
PARTICIPANT IN THE CRIMINAL PROCEEDING

CHAPTER FIVE
PARTICIPANTS IN PROCEEDINGS TO PROTECT THEIR OWN INTERESTS OR INTERESTS OF REPRESENTING PERSONS

Article 36. The Accused

36.3. The accused shall have the following right:

36.3.1. to know for what offence he is accused of;

36.3.2. to be presented with decree to prosecute as the accused and with decree on measures of
restraint have been taken;

36.3.3. to make self-defense; to have an defense counsel as provided for in Article 39 of this Law;

36.3.4. to have individual meeting with his/her defense counsel;

36.3.5. to give verbal or written explanation concerning the accusation presented to him;

36.3.6. to give testimony or refuse to give a testimony;

36.3.7. to present evidence, submit petition requiring an examination of evidence;

36.3.8. to get presented with materials of the case involving him/her;

36.3.9. to take part in the court session;

36.3.10. to submit challenges with regard to inquiry officer, investigator, procurator, translator,
interpreter, expert, judge, a citizens' representative, or secretary of a judicial session;

36.3.11. to lodge complaints regarding actions of an inquiry officer, investigator, procurator, and court proceedings;

36.3.12. to get familiar with decrees on appointment of experts and with their conclusions;

36.3.13. to give testimony in his/her mother tongue or known language, to make use of a translator, interpreter;

36.3.14. with the permission of an inquiry officer or investigator to be present in investigative actions at his/her own or the defense counsel's request, and to get familiar minutes of the actions and to request changes in the minutes;

36.3.15. to present a final speech at court session;

36.3.16. to appeal the judgement;

36.3.17. to acquaint him/herself with the protests and appeals on court judgement lodged by other persons and to give explanation regarding them;

36.3.18. to require to be compensated for damages occurred due to activities of an inquiry officer, procurator, investigator or judge in violation of law.

36.4. A defendant shall not be obliged to testify against himself, as well as to prove his/her innocence
or any other circumstances of the case known to him.

36.5. The defendant shall have following duties:

36.5.1. to appear when summoned by an inquiry officer, investigator, procurator, and court;

36.5.2. to not hinder examination on his body or his/her transfer to a medical institution on the basis of decree drawn up by an inquiry officer, investigator, or procurator, as well as executeion of other decisions made by competent organizations and officials made during the criminal proceedings;

36.5.3. to obey the order of the court session.

Article 37. Legal Representative of a Minor Suspect and Accused

37.1. In the proceedings of cases related to minor suspect, accused and defendant, their legal
representative shall take part in.

37.2. A legal representative of minor suspect, accused and defendant shall participate in the
proceedings according to rules provided by Articles 364-377 of this Law.

Article 38. Defense Counsel

38.1. A defense counsel is a person who protects rights and legal interests of suspect, accused,
defendant and victim according to rules set by law and renders legal assistance.

38.2. If it is not possible for a professional defense counsel to get involved, a suspect, accused, or
defendant him/herself shall choose a person who do not have reasons to negatively affect the proceeding as defense counsel.

38.3. Defense counsel has the right to take part in criminal proceedings starting from the moment
when some one is deemed as suspect in a crime.

38.4. One defense counsel may not defend several suspects, accused, or defendants who have
mutually contradicting interests regarding a case.

Article 39. Selection and Replacement of Defense Counsel

39.1. A suspect, accused, defendant and victim shall have the right to select their defense counsel
themselves.

39.2. With the consent or request of a suspect, accused, defendant or victim, his/her legal
representative, member of family, or relative may select a defense counsel for him/her.

39.3. One person may have several defense counsel.

39.4. When suspect, accused, defendant or victim has not selected a defense counsel, upon their
request, the inquiry officer, investigator, procurator, and court shall provide an opportunity for a defense counsel to participate in the criminal proceedings, but it is prohibited to urge to him name of a particular lawyer.

39.5. In the event when participation of defense counsel selected by the suspect or accused is
impossible, or challenge to the counsel, the suspect, accused, or defendant shall have the right to select another defense counsel.

Article 40. Obligatory Involvement of Defense Counsel

40.1. The participation of defense counsel in a judicial examination shall be obligatory in cases of
following suspect, accused or defendant:

40.1.1. mute, deaf, blind, and other persons who by reason of their physical or mental defects are not able to exercise their right to defense themselves;

40.1.2. minors;

40.1.3. persons who do not have command of Mongolian language;

40.1.4. to whom death penalty may be applied;

40.1.5. if one of suspects, accused or defendants who have contradicting interests on a case has a
defense counsel, then other suspects, accused or defendants.

40.2. If in instances provided for in Article 40.1. of this Law, defense counsel is not engaged by the
suspect, accused, and defendant him/herself, or by his legal representative, member of family, relative or by other persons upon his/her commission, the inquiry officer, investigator, procurator or court shall be obliged to secure the participation of defense counsel in the case.

Article 41. Duties and Rights of Defense Counsel

41.1. Defense counsel shall be obliged to protect rights and legal interests of suspect, accused, or
defendant and provide legal assistance to them.

41.2. The defense counsel shall not have the right to withdraw from the defense without a valid
reason from the moment of consent or assignment and shall not have a right to collect evidence by illegal means.

41.3. Defense counsel shall have the following right:

41.3.1. to meet with the suspect, accused, or defendant along from the moment he/she is permitted to participate in a case, be present at their interrogation and to put questions;

41.3.2. to submit petition to collect objects, documents, information and other evidences required for providing legal assistance as stated in Article 92 of this Law or to present them and to have them
inspected and included in the file of the case;

41.3.3. to be present at the interrogation of victims, witnesses and experts, to put questions to them;

41.3.4. to be present during the execute of any other investigative actions performed upon petition of the suspect, accused, or defendant, and put questions to other participants such as witnesses, expert etc of the executing of the actions at any moment;

41.3.5. to get acquainted with the record of procedural actions and to submit written proposal to make corrections;

41.3.6. with the consent of individual persons or organizations to require from them explanations and references,

41.3.7. to submit challenges to inquiry officer, investigator, procurator, translator, interpreter, judge, citizens' representative and secretary of a judicial session;

41.3.8. upon completion of the inquiry or investigation to become acquainted with all the materials of the case and at his own expenses make copies some of the materials which do not contain secrets
of state, organizations, and individuals;

41.3.9. participate in judicial examination in the court;

41.3.10. to lodge a complaint on actions and decisions of inquiry officer, investigator, procurator, and court.

41.3.11. to be present at his/her will in resolving by court the issue of arrest or confinement under guard of the suspect or accused being defended and to submit comments to the court;

41.3.12. to participate at his/her will in the appellate or supervisory instance court hearing.

PART III
MEASURES OF COERCION IN CRIMINAL PROCEEDINGS

CHAPTER EIGHT
ARREST OF SUSPECT

Article 59. Procedure for Arresting of Suspect

59.2. Grounds and reasons for the arrest, place and time, results of searching his/her body and time
of making record shall be specified in the decree.

59.3. Decree of arrest shall be presented to the suspect and his/her rights provided in Article 35 of
this Law shall be explained to the suspect including the right to give testimony together with defense counsel and this fact shall be reflected in the record.

PART IV
EVIDENCE, ACTIONS TO PROVE

CHAPTER ELEVEN
EVIDENCE

Article 81. Testimony of Suspect

81.1. A suspect shall have the right to give testimony in relation to the circumstances which serve as
the ground for his/her arrest or confinement under guard, and also any circumstances of the case known to him.

81.2. It is prohibited to coerce a suspect to give a testimony, or to subject him/her to inhuman or
cruel treatment, or to insult his/her dignity.

Article 82. Testimony of Accused

82.1. An accused shall have the right to give testimony in relation to accusation presented to
him/her, or any circumstances of the case known to him/her or in relation to evidences in the case.

82.2. Confession of guilt by the accused may become the basis for an accusation only if the
confession is confirmed by other evidences in the case.

82.3. It is prohibited to coerce an accused to give a testimony, or to subject him/her to inhuman or
cruel treatment, or to insult his/her dignity.

Article 83. Testimony of Victim

83.1. A victim shall be obligated to appear when summoned by an inquiry officer, investigator,
procurator, or court, to give true and correct testimony on everything known to him/her about the case and to reply to the questions put to him/her.

83.2. If a victim can not indicate the source of his/her testimony it shall not serve as evidence.

Article 84. Testimony of Witness

84.1. A witness shall be obligated to give truthful and correct testimony concerning all circumstances
relevant to proving the case, including the personality of the suspect, accused, defendant and the victim, and his/her relationship with him/her.

84.2. If a witness can not indicate the source of his/her testimony it shall not serve as evidence.

PART VII
PRE-COURT ACTIONS

CHAPTER TWENTY FIVE
THE GENERAL CONDITIONS FOR CARRYING OUT THE INQUIRY AND INVESTIGATION

Article 187. Compulsory Explanation of Rights of the Participants in Criminal Proceedings and
Their Assurance

187.1. An inquiry officer or investigator shall explain to suspect, accused, victim, civil plaintiff, civil
defendant, and their representatives as well as other persons participating in criminal proceedings about their rights and duties as well as consequences of not fulfilling their duties and shall ensure the possibility to exercise their rights during criminal proceedings .

PART VII
PRE-COURT ACTIONS

CHAPTER TWENTY SIX
PRESENTATION OF THE ACCUSATION AND INTERROGATION OF THE ACCUSED

Article 196. Prosecuting as the Accused

196.2. A decree to prosecute as the accused must indicate the time and place it is drawn up, by whom the decree is drawn up, the surname, father's name and the first name of the person prosecuted as the accused; the article of the Criminal Code which provides for the crime which the given person is accused of committing, with an indication of the time, place, and other circumstances established.

PART VII
PRE-COURT ACTIONS

CHAPTER TWENTY SIX
PRESENTATION OF THE ACCUSATION AND INTERROGATION OF THE ACCUSED

Article 200. Explanation to Accused of His/Her Rights

200.1. When presenting an accusation, an accused shall be explained of his/her rights provided in
Article 36 of this Law, and a note to such effect shall be made on a record of a first interrogation of the accused, and shall be certified by signature of the accused.

PART VII
PRE-COURT ACTIONS

CHAPTER TWENTY SIX
PRESENTATION OF THE ACCUSATION AND INTERROGATION OF THE ACCUSED

Article 202. Record of Interrogation of Accused

202.8. If interrogation of the accused is carried out with the participation of a translator, interpreter, the record shall include an indication that their duties and responsibilities and the right of accused to challenge the translator, interpreter have been explained and this shall be certified by the signature of the translator or interpreter.

202.9. The translator or interpreter shall sign each page of the record and the record as a whole.

202.10. If the record of the interrogation has been translated in writing into another language, the translation as a whole and each separate page thereof must be signed by the translator and the accused.

PART VIII
COURT ACTIVITIES

CHAPTER THIRTY ONE
BRINGING THE ACCUSED TO TRIAL AND ACTIONS IN PREPARATION OF JUDICIAL SESSION

Article 231. Handing Copy of Conclusion to Indict

231.1. A copy of the decree to prosecute as accused or conclusion to indict must be handed to the
person brought to trial by the court with the writ.

PART VIII
COURT ACTIVITIES

CHAPTER THIRTY TWO
GENERAL CONDITIONS OF THE JUDICIAL SESSION

Article 238. Equality of Rights of Participants in Judicial Session

238.1. The state prosecutor, defendant, and defense counsel, as well as a victim, civil plaintiff, civil
defendant, and their representatives shall enjoy equal rights in presenting a request and an evidence, in participating in their analysis and in making speeches.

PART VIII
COURT ACTIVITIES

CHAPTER THIRTY TWO
GENERAL CONDITIONS OF THE JUDICIAL SESSION

Article 241. Participation of Defense Counsel in Judicial Session

241.1. A defense counsel shall take part in the analysis of evidence, shall express his comments on questions arising during the judicial session, and on circumstances for rehabilitating the defendant or tending to mitigate the defendant's responsibility as well as on the measures of conviction with respect to the defendant.

241.2. In the event of non appearance of a defense counsel and if it is impossible to replace him in the session, examination of the case shall be postponed.

241.3. Issue of replacement of the defense counsel shall be resolved according to Article 39 of this Law.

241.4. In instances except specified in Article 40 of this Law, a case may be examined at judicial session upon submitting by a defendant written request to defend him/herself.

PART VIII
COURT ACTIVITIES

CHAPTER THIRTY THREE
JUDICIAL INVESTIGATION

Article 263. Hearing Testimony of Defendant

263.1. After proclamation of the conclusion to indict by the state prosecutor, the chair of the judicial session shall ask the defendant whether he/she will give testimony and if agrees shall hear his/her testimony.

PART VIII
COURT ACTIVITIES

CHAPTER THIRTY FOUR
ORAL ARGUMENT AND THE LAST WORD OF THE DEFENDANT

Article 279. Content and Procedure of Oral Argument

279.1. After completion of a court litigation, a court shall hear oral arguments.

279.2. Oral arguments of judicial session shall consist of speeches of the prosecutor, defense counsel or of 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.

279.3. Persons participating in oral argument shall make speeches in sequence set forth in Article
279.2. of this Law.

279.4. Participants in oral argument of the judicial session shall not have the right to refer to evidence which has not been the subject of consideration in the judicial investigation.

279.5. The court may not limit the duration of oral argument to a certain period of time, but the chair of the judicial session shall have the right to stop a participant if circumstances not related to the case are discussed.

279.6. After the participants in oral argument of the judicial session have finished their speeches, they may each comment once more with regard to what was said in the speeches and the right of last comment shall always belong to the defendant and his/her defense counsel.

Article 280. Last Word of Person Brought to Trial

280.1. After completion of oral argument of the judicial session, the chair of the session shall grant the defendant the last word and questions to the defendant during his/her last word shall not be permitted.

280.2. The court may not limit the duration of the last word of the defendant to a certain period of time.

RELEVANT ROME STATUTE PROVISIONS

Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.