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[F.A.Q.]
Federated States of Micronesia Rules of Court |
[1999 FSM Code
Annotated]
TITLE 12
CRIMINAL PROCEDURE
Chapters:
1.
General Provisions (§§
101-102)
2. Process-Warrants and Arrest
(§§ 201-220)
3. Searches and
Seizures (§§ 301-314)
4.
Rights of Defendants (§ 401)
5.
Preliminary Matters (§§
501-507)
6. Bail (§§
601-608)
7. Witnesses (§§
701-702)
8. Dismissal (§§
801-802)
9. Insanity (§§
901-902)
10.
Repealed
11. Juveniles (§§
1101-1107)
12. Joint Administration of
Law Enforcement (§§
1201-1203)
13. Justice Improvement
Commission (§§ 1301-1307)
14.
Criminal Extradition (§§
1401-1410)
15. Criminal Extradition
Procedures (§§ 1501-1516)
16.
Interstate extradition (§§ 1601-1608)
________
CHAPTER 1
General Provisions
Sections:
§
101.
Definitions.
§
102. Name in which prosecution shall be conducted.
--------------
§
101. Definitions.
As used in this
Title, the following terms shall have the meanings set forth
below:
(1) “Arrest” means placing any person under any form of detention by legal authority.
(2) “Attorney General” means the legal officer on the staff of the High Commissioner or any person appointed by the High Commissioner to supervise prosecutions throughout the Trust Territory.
(3) “Citation” means a written order to appear before a court at a time and place named therein to answer a criminal charge briefly described in the citation. It shall contain a warning that failure to obey it will render the accused liable to have a complaint filed against him upon which a warrant of arrest may be issued. The statement of the charge or charges in a citation or a copy thereof may be accepted by the court in place of an information in any misdemeanor tried in the first instance in a community court or a district court.
(4) “Complaint” means a statement of the essential facts constituting a criminal offense by one or more persons named or described therein. It shall be made under oath before a court or an official authorized to issue a warrant. It may be either written or oral, but whenever the court or official hearing it deems practicable it shall be reduced to writing, signed by the complainant, and bear a record of the oath signed by the person who administered it. The complaint shall refer to the Code section, ordinance, district order, native custom, or other provision of the law which the accused is alleged to have violated, but any error in this reference or its omission may be corrected by leave of court at any time prior to sentence and shall not be ground for reversal of a conviction if the error or omission did not mislead the accused to his prejudice. If a felony is not charged, the court may accept a complaint in lieu of an information.
(5) “District attorney” means any person appointed by the High Commissioner to represent the Government in any case, civil or criminal, in any court of the Trust Territory.
(6) “Judge” means any member of the High Court, a district court, or a community court.
(7) “Oath” shall include a solemn affirmation.
(8) “Penal summons” means a written order summoning a person or persons to appear before a court at a time and place named therein, instead of commanding an arrest. Otherwise it shall meet all the requirements of a warrant. It shall contain a warning that failure to obey it will render the accused liable to arrest upon a warrant.
(9) “Personal recognizance” means a promise made before an official authorized to accept bail that in consideration of the release of the person he will appear in accordance with all orders of the court and that if he fails to do so he will pay a stated sum of money.
(10) “Policeman” means any member of the Micronesia police or any person authorized by the High Commissioner or any district administrator to act as a policeman.
(11) “Search warrant” means a written order directed to a policeman, commanding him to search for and, if found, to seize and bring before a particular court or official certain articles supposed to be in the possession of a person or at a place named or described in the search warrant. It shall be signed by the Clerk of Court or by the official issuing it, and shall state the grounds or probable cause for its issuance and the name of the person or persons whose statements, under oath, have been taken in support thereof. It shall designate the court or official to whom it shall be returned.
(12) “Warrant of arrest” means a written order commanding that a person or persons be arrested and brought without unnecessary delay before a court named therein, or otherwise dealt with according to law. It shall be signed by the clerk of the Court or by the official issuing it and shall contain the name of the accused, or if his name is unknown any name or description by which he can be identified with reasonable certainty. It shall describe the criminal offense charged and may do so by referring to either the original or a copy of the complaint or information attached to or on the same sheet as the warrant. Except where otherwise indicated, the word “warrant” in this Title refers to a “warrant of arrest.”
Source: FSM Code (1982).
Annotations
Brief detention for questioning about suspicious circumstances is not an arrest, but neither is a formal charge essential. FSM v Edward, 3 FSM Intrm 224, 232 (Pon 1987).
One should be considered “arrested” when one’s freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer’s suspicion that the detained person may be, or may have been, involved in the commission of a crime. Plais v Panuelo, 5 FSM Intrm 179, 191 (Pon 1991).
§
102. Name in which prosecution shall be
conducted.
Criminal prosecutions
shall be conducted in the name of the Federated States of Micronesia for
violations of the following:
(1) laws enacted by the Congress of the Federated States of Micronesia; and
(2) statutes of the Trust Territory of the Pacific Islands which are continued in effect by Article XV, Section 1, of the Constitution of the Federated States of Micronesia and are within the jurisdiction of the National Government of the Federated States of Micronesia.
Source: FSM Code (1982).
Annotations
Provision limits cases which may be conducted in the name of the National Government to cases charging violation of statutes within the jurisdiction of the National Government. FSM v Boaz (II), 1 FSM Intrm 28, 32 (Pon 1981).
The conclusion that the Trust Territory Weapons Control Act became a National law is consistent with Section 102 which states that criminal prosecutions that shall be conducted in the name of the National government for violations of statutes of the Trust Territory. FSM v Nota, 1 FSM Intrm 299, 303 (Chk 1983).
_____
CHAPTER 2
PROCESS-WARRANTS AND ARREST
§
201. Process obligatory upon
police.
§ 202.
Limitation of arrests without a
warrant.
§ 203.
Authority to issue a warrant of
arrest.
§ 204.
Warrant or penal summons upon
complaint.
§
205. Investigation of complaint in doubtful
cases.
§ 206.
Use of penal summons in lieu of warrant of
arrest.
§ 207.
Execution of warrants and service of penal
summons.
§ 208.
Return of
service.
§ 209.
Issuance of oral order in lieu of warrant or penal summons by community
court.
§ 210.
Issuance of warrant or penal summons on
information.
§
211. Authority to arrest without
warrant.
§ 212.
Use of
citations.
§
213. Complaints in cases of arrest without
warrant.
§ 214.
Arrested person to be informed of cause and authority of
arrest.
§ 215.
Use of force in making
arrest.
§ 216.
Disposition of persons arrested by private
persons.
§ 217.
Disposition of arrested persons by
policeman.
§
218. Rights of persons
arrested.
§
219. Effect of irregularities in issuance of warrant of
arrest.
§ 220.
Effect of violation of title.
______
§
201. Process obligatory upon
police.
(1) All process in any
criminal proceedings, in all contempt proceedings, and in juvenile delinquency
proceedings, issued in accordance with law and the rules of procedure prescribed
in accordance with law, shall be obligatory upon all policemen having knowledge
thereof, and any policeman to whom such process is given shall promptly make
diligent effort to execute or serve the same either personally or through
another policeman.
(2) This Section
shall cover orders to show cause why a person should not be adjudged in
contempt, orders of attachment of a person, summons, and all other orders
(including an oral order in place of any of the foregoing), issued in either
civil contempt proceedings or juvenile delinquency proceedings, as well as all
forms of process in criminal proceedings.
Source: FSM Code (1982).
§
202. Limitation of arrests without a
warrant.
No arrest of any person
shall be made without first obtaining a warrant therefor, except in the cases
authorized in this Chapter or as otherwise provided by law.
Source: FSM Code (1982).
§
203. Authority to issue a warrant of
arrest.
The following officials are
authorized to issue a warrant of arrest:
(1) any court;
(2) any judge;
(3) the clerk of courts for a district, subject to such limitations as the Chief Justice of the High Court may impose;
(4) any other person authorized in writing by the High Commissioner, and a certified copy of whose authorization is filed with the clerk of courts for the district in which he acts.
Source: FSM Code (1982).
§
204. Warrant or penal summons upon
complaint.
(1) Any person, other
than the Attorney General or a district attorney, desiring the issuance of a
warrant of arrest for a criminal offense shall personally appear and make a
complaint within the district where the offense or some part thereof is alleged
to have been committed, before an official authorized to issue a
warrant.
(2) If the complaint
states the essential facts constituting a criminal offense by one or more
persons named or described therein, and if, in the opinion of the official,
there is probable cause to believe or strongly suspect that the offense
complained of has been committed by such person or persons, the official may
issue his warrant for the arrest of such person or persons, or may issue a penal
summons as provided in this
Chapter.
(3) Any official, other
than a judge of a district court, may refuse to act if he deems that the public
interest does not require action before the matter can reasonably be presented
to a judge of a district court.
Source: FSM Code (1982).
§
205. Investigation of complaint in doubtful
cases.
(1) If a judge of a district
court before whom a complaint is made is doubtful whether sufficient grounds in
fact exist for the issuance of a warrant or penal summons, he may, if the
complainant consents, refer the complaint to the Micronesia police for
investigation and report and withhold action for a reasonable time pending such
report.
(2) If the complainant does
not consent to such a reference or if the report of investigation is not
received within a reasonable time, the judge shall proceed to examine under oath
the complainant, any witnesses offered by the complainant and such other
witnesses as the judge deems best and may, in his discretion, give the accused
an opportunity to be present and to be
heard.
(3) If the judge is
satisfied from the investigation made by the Micronesia police or that made by
him as directed in Subsection (2) of this Section that there is probable cause
to believe or strongly suspect that the offense complained of has been committed
and that the accused committed it, he shall issue a warrant or a penal summons
as provided in this Chapter.
Source: FSM Code (1982).
§
206. Use of penal summons in lieu of warrant of
arrest.
(1) In the case of all
criminal offenses for which the lawful punishment does not exceed a fine of
$100, or 6 months imprisonment, or both, a penal summons to appear before a
court at a time and place fixed in the penal summons shall be issued instead of
a warrant of arrest, unless it shall appear to the court or official issuing the
process that the public interest requires the arrest of the
accused.
(2) Upon request of the
complainant, a penal summons instead of a warrant may be issued in any
case.
(3) If, after a penal summons
has been served upon him, the accused fails to appear in response to the penal
summons without an excuse known to and deemed adequate by the court named
therein, a warrant shall be issued.
Source: FSM Code (1982).
§
207. Execution of warrants and service of penal
summons.
A warrant of arrest shall
be executed or the penal summons served by a policeman or by a person
specifically authorized in the warrant or summons to execute or serve it. The
warrant may be executed or the summons served at any place within the
jurisdiction of the Trust Territory. The penal summons shall be served upon the
accused by delivering a copy to him personally and orally explaining the
substance thereof to him in a language generally understood in the locality and,
if practicable, in one understood by the accused, or by leaving it at his
dwelling house or usual place of abode or of business with some person of
suitable age and discretion then residing or employed therein and orally
explaining the substance thereof.
Source: FSM Code (1982).
§
208. Return of service.
(1) The
person executing a warrant shall endorse thereon and sign a statement of the
arrest showing the date and place of arrest and shall have such warrant
delivered to the court or official before whom the accused is brought pursuant
to Section 217 of this Chapter, or to the court named in the warrant if the
accused is released on bail or personal recognizance before being brought before
a court or official.
(2) At or
before the time stated in a penal summons for an appearance of the accused, the
person to whom a penal summons is delivered for service shall endorse and sign a
report of his action thereon and have such summons delivered to the court named
therein. If he has served the summons, his report shall show the date, place,
and method of service.
Source: FSM Code (1982).
§
209. Issuance of oral order in lieu of warrant or penal summons by community
court.
(1) A community court or any
judge thereof may, if the court or judge deems the public interest so requires,
issue an oral order in place of either a warrant of arrest or a penal summons,
which shall have the same force and effect within the territorial jurisdiction
of that court as a warrant or penal
summons.
(2) Such an oral order may
be served by orally communicating the substance thereof to the accused and the
report of execution or service of such an order may be made
orally.
(3) Any person making an
arrest on such an oral order or serving such an order in place of a penal
summons shall report all the essential facts to the court or official before
whom the accused is brought or ordered to
appear.
(4) Any person by going to
trial before a community court without requesting a copy of the charges against
him thereby waives his right to have a copy in advance of trial in that court,
but he does not thereby waive his right to such copy before trial in a district
court in the event of an appeal.
Source: FSM Code (1982).
§
210. Issuance of warrant or penal summons on
information.
The Attorney General
or a district attorney may file an information signed by him in any court
competent to try the accused for a criminal offense or offenses charged therein.
If the information states the essential facts constituting a criminal offense or
offenses by one or more persons named or described therein and is supported by
one or more written statements under oath showing to the satisfaction of the
court that there is probable cause to believe or strongly suspect that the
offense complained of has been committed by such person or persons, the court
shall, upon request of the Attorney General or district attorney, issue its
warrant or penal summons as upon a complaint.
Source: FSM Code (1982).
§
211. Authority to arrest without
warrant.
Arrest without a warrant
is authorized in the following situations:
(1) Where a breach of the peace or other criminal offense has been committed, and the offender shall endeavor to escape, he may be arrested by virtue of an oral order of any official authorized to issue a warrant, or without such order if no such official be present.
(2) Anyone in the act of committing a criminal offense may be arrested by any person present, without a warrant.
(3) When a criminal offense has been committed, and a policeman has reasonable ground to believe that the person to be arrested has committed it, such policeman may arrest the person without a warrant.
(4) Policemen, even in cases where it is not certain that a criminal offense has been committed, may, without a warrant, arrest and detain for examination, persons who may be found under such circumstances as justify a reasonable suspicion that they have committed or intend to commit a felony.
Source: FSM Code (1982).
Annotations
Section 211 does not authorize arrest for violation of local ordinances because they are not criminal offenses. Paul v Celestine, 4 FSM Intrm 205, 209 (App 1990).
§
212. Use of citations.
A policeman
in any case in which he may lawfully arrest a person without a warrant, may,
subject to such limitations as his superiors may impose, issue and serve a
citation upon the person instead of making an arrest, if he deems that the
public interest does not require an arrest.
Source: FSM Code (1982).
§
213. Complaints in cases of arrest without
warrant.
When a person arrested
without a warrant is brought before a court or official authorized to issue a
warrant, a complaint shall be made against him forthwith, if that has not
already been done.
Source: FSM Code (1982).
§
214. Arrested person to be informed of cause and authority of
arrest.
(1) Any person making an
arrest shall, at or before the time of arrest, make every reasonable effort to
advise the person arrested as to the cause and authority of the
arrest.
(2) A policeman making an
arrest by virtue of a warrant need not have the warrant in his possession at the
time of the arrest, but, after the arrest, the person arrested may request to
see the warrant, and that shall be shown to him as soon as
possible.
Source: FSM Code (1982).
Annotations
Where officer told defendant that he was going to take him “to a place” because he was drinking, and defendant apparently understood that the officer was seeking to effect an arrest, there was sufficient compliance with Section 214. Loch v FSM, 1 FSM Intrm 566, 569 (App 1984).
Liability for failure to inform a person of the charge for which he is being arrested will not be imposed when he knew was dealing with police who could arrest him, that he was likely to be arrested and why. Conrad v Kolonia Town, 8 FSM Intrm 183, 193 (Pon 1997).
§
215. Use of force in making
arrest.
In all cases where the
person arrested refuses to submit or attempts to escape, such degree of force
may be used as is necessary to compel submission.
Source: FSM Code (1982).
Annotations
A police officer is entitled to respond to physical resistance or attacks against him as he attempts to make an arrest by using whatever force is reasonable to defend himself or others from harm. Loch v FSM, 1 FSM Intrm 566, 570 (App 1984).
Where rights specified in Section 208 were read to the defendant before his questioning began, and there was no other showing of police intimidation or manipulation and the defendant had recognized that his guilt was apparent, the defendant’s confession was voluntary even though a police officer promised to reduce charges if the defendant cooperated. FSM v Jonathan, 2 FSM Intrm 189, 198 (Kos 1986).
Defendant’s rights were violated when he was detained and questioned for some 6 or 7 hours without being advised of his rights. FSM v Edward, 3 FSM Intrm 224, 232 (Pon 1987).
Section 218 established a statutory right in the nature of a civil right, which is directly violated by questioning without prior advice of right. FSM v Edward, 3 FSM Intrm 224, 233 (Pon 1987).
Unlawful questioning of defendant without prior advice of rights does not require suppression of later statement made after defendant had been advised of his rights. FSM v Edward, 3 FSM Intrm 224, 234 (Pon 1987).
When a defendant has expressed a wish to meet with counsel before further questioning, questioning must cease at once. Any attempt by police officers to ignore or override the defendant’s wish, or to dissuade him from exercising his right, constitutes a violation of Section 218. FSM v Edward, 3 FSM Intrm 224, 237 (Pon 1987).
A person should be considered as “arrested” within the meaning of Section 218 when his freedom of movement is substantially restricted or controlled by a police officer exercising official authority. Plats v Panuelo, 5 FSM Intrm 179, 191 (Pon 1981).
Refusal of officers to permit representative of the Office of the Public Defender and accused mother to see accused violated civil rights guaranteed by Section 218, and constituted official actions for which the State of Pohnpei could be held responsible. Plais v Panuelo, 5 FSM Intrm 179, 207 (Pon 1991).
§
216. Disposition of persons arrested by private
persons.
Any private person making
an arrest shall deliver the arrested person to a policeman or an official
authorized to issue a warrant without unnecessary delay and shall explain the
cause of the arrest. Except where transportation difficulties are involved, or
neither a policeman nor an official authorized to issue a warrant can be located
promptly, such delay should not extend beyond a few hours during the daytime or
early evening nor beyond ten o’clock on the following morning in the case
of persons arrested during the nighttime.
Source: FSM Code (1982).
§
217. Disposition of arrested persons by
policeman.
Persons arrested by a
policeman, except under Subsection (4) of Section 211 of this Chapter, or
delivered to him after arrest by a private person, shall be brought without
unnecessary delay before a court competent to try the offender for the criminal
offense charged, subject to the following:
(1) If bail has been fixed, it shall be accepted and the arrested person released to appear in accordance with all orders of the court named in the warrant or any court to which the case may be transferred. Reasonable opportunity to raise bail shall be afforded by permitting the person arrested to send a message or messages through a policeman or other persons by telephone, cable, wireless, messenger, or other expeditious means, to any person likely to assist in securing bail; provided, that such message can be sent without expense to the Government or that the arrested person prepays any expense there may be to the Government.
(2) If it appears that it will not be practicable to bring the arrested person promptly before a court competent to try him for the offense charged, and he has not been released on bail or personal recognizance, he shall be brought before an official authorized to issue a warrant without unnecessary delay. This official shall commit the arrested person, discharge him, or release him on bail or personal recognizance as provided in this Title. Whenever a judge of a district court is available, the arrested person shall be brought before such a Judge in preference to any other official authorized to issue a warrant.
Source: FSM Code (1982).
§
218. Rights of persons arrested.
In
any case of arrest, or arrest for examination, as provided in Subsection (4) of
Section 211 of this Chapter, it shall be unlawful to:
(1) deny to counsel, whether such counsel is retained by the arrested person or a member of his family or is a Public Defender not yet appointed by the court, the right to see the arrested person once, at any time, for a reasonable period of time at the place of detention, and thereafter at reasonable intervals and for reasonable periods of time; or
(2) deny to the arrested person the right to see, at reasonable intervals, and for reasonable periods of time at the place of his detention, counsel, or members of his family, or his employer, or a representative of his employer; or
(3) to refuse or fail to make a reasonable effort to send a message by telephone, cable, wireless, messenger, or other expeditious means to any person mentioned in Subsection (2) of this Section, provided the arrested person so requests and such message can be sent without expense to the Government or the arrested person prepays any expense there may be to the Government; or
(4) fail either to release or charge such arrested person with a criminal offense within a reasonable time, which under no circumstances shall exceed 24 hours; or
(5) fail to either release the accused or to bring him before a court, judge, or judicial officer for a bail hearing within a reasonable time, which under no circumstances shall exceed 24 hours after his arrest, unless the location of the nearest court makes such appearance impossible. When the location of the court makes such appearance impossible, the municipal or community court judge for the area where the person was arrested shall be immediately notified by the arresting person or officer and shall set any conditions for the release of the person that the judge believes will protect the public and will insure the presence of the person when transportation to the nearest court becomes possible. The person arrested shall be transported to the nearest court without unnecessary delay.
(6) further, it shall be unlawful for those having custody of one arrested, before questioning him about his participation in any crime, to fail to inform him of his rights and their obligations under Subsections (1) through (5) of this Section.
(7) in addition, any person arrested shall be advised as follows:
(a) that the individual has a right to remain silent;
(b) that the police will, if the individual so requests, endeavor to call counsel to the place of detention and allow the individual to confer with counsel there before he is questioned further, and allow him to have counsel present while he is questioned by the police if he so desires; and
(c) that the services of the Public Defender, when in the vicinity, or of his local representative, are available for these purposes without charge.
Source: FSM Code (1982).
§
219. Effect of irregularities in issuance of warrant of
arrest.
The proceedings before a
court or an official authorized to issue a warrant of arrest shall not be
invalidated, nor any finding, order, or sentence set aside, for any error or
omission, technical or otherwise, occurring in such proceedings, unless in the
opinion of the reviewing authority or a court hearing the case on appeal or
otherwise it shall appear that the error or omission has prejudiced the
accused.
Source: FSM Code (1982).
§
220. Effect of violation of
title.
No violation of the
provisions of this Chapter shall in and of itself entitle an accused to an
acquittal, but no evidence obtained as a result of such violation shall be
admissible against the accused; provided, that any person detained in custody in
violation of any provision of this Chapter may, upon motion by any person in his
behalf, and after such notice as the court may order, be released from custody
by the court named in the warrant, or before which he has been held to answer.
The release shall be upon such terms as the court may deem law and justice
require. The relief authorized by this Section shall be in addition to, and
shall not bar, all forms of relief to which the arrested person may be entitled
by law.
Source: FSM Code (1982).
Annotations
Section 220 prohibits evidence or admissions gained through violations of the defendant’s rights from being used to elicit other admissions. FSM v Edward, 3 FSM Intrm 224, 233 (Pon 1987).
Where admissions had been obtained in the course of questioning conducted in violation of the defendant’s right, statutory policy calls for a presumption that subsequent admissions were also obtained as a result of the violation. FSM v Edward, 3 FSM Intrm 224, 233 (Pon 1987).
Once a defendant has invoked his right to counsel, officers may not present to the defendant a waiver form for his signature and resume questioning; any statement obtained as a result of such actions is inadmissible. FSM v Edward, 3 FSM Intrm 224, 237 (Pon 1987).
Where defendant is questioned without being advised of all of his rights, the effect of the violation was to render inadmissible the evidence obtained. FSM v Sangechik, 4 FSM Intrm 210, 211 (Chk 1990).
_______
CHAPTER 3
Searches and Seizures
Sections:
§
301. Searches and seizures in connection with
arrests.
§ 302.
Forcing entrance to make
arrest.
§ 303.
Authority to issue a search
warrant.
§ 304.
Property for which search warrant may be
issued.
§ 305.
Procedure for issuance of search
warrants.
§
306. Contents of search
warrant.
§ 307.
Execution of search warrant and return with
inventory.
§
308. Hearing upon return of search
warrant.
§ 309.
Filing of search warrant and accompanying
papers.
§ 310.
Oral order in lieu of search
warrant.
§ 311.
Entering building or ship to execute search
warrant.
§ 312.
Motion for return of property and to suppress
evidence.
§
313. Sale of perishable
property.
§
314. Effect of irregularities in proceedings to issue search
warrant.
_______
§
301. Searches and seizures in connection with
arrests.
(1) Every person making an
arrest may take from the person arrested all offensive weapons which he may have
about his person and may also search the person arrested and the premises where
the arrest is made, so far as the premises are controlled by the person
arrested, for the instruments, fruits, and evidences of the criminal offense for
which the arrest is made, and, if found, seize
them.
(2) Any property taken or
seized shall be promptly delivered to a policeman or an official authorized to
issue a warrant to be disposed of according to
law.
(3) No search warrant shall be
required for the actions authorized by this Section.
Source: FSM Code (1982).
§
302. Forcing entrance to make
arrest.
Whenever it is necessary to
enter a building or ship to make an arrest and entrance is refused, any person
making an arrest for a felony committed in his presence or a policeman making an
arrest may force an entrance. Before breaking any door or other barrier, he
shall first demand entrance in a loud voice and state that he desires to execute
a warrant of arrest or an oral order in place of a warrant, or, if it is a case
in which arrest is lawful without a warrant, he must substantially state that
information in a loud voice. Whenever practicable, this demand and statement
shall be made in a language generally understood in the locality.
Source: FSM Code (1982).
§
303. Authority to issue a search
warrant.
The following officials
are authorized to issue a search warrant:
(1) any court;
(2) any judge;
(3) the clerk of courts for a district subject to such limitations as the Chief Justice of the High Court may impose;
(4) any other person authorized in writing by the High Commissioner, provided a certified copy of such authorization is filed with the clerk of courts for the district in which he acts.
Source: FSM Code (1982).
§
304. Property for which search warrant may be
issued.
(1) Except where otherwise
expressly authorized by law, search warrants shall be issued only to search for
and seize the following:
(a) property the possession of which is prohibited by law; or
(b) property stolen or taken under false pretenses or embezzled or found and fraudulently appropriated; or
(c) forged instruments in writing, or counterfeit coin intended to be passed, or instruments or materials prepared for making them; or
(d) arms or munitions prepared for the purpose of insurrection or not; or
(e) property necessary to be produced as evidence or otherwise on the trial of anyone accused of a criminal offense; or
(f) property designed or intended for use as, or which is, or has been used as, the means of committing a criminal offense.
(2)
The term “property” as used herein includes documents, books,
papers, and any other tangible objects.
Source: FSM Code (1982).
§
305. Procedure for issuance of search
warrants.
(1) Anyone desiring the
issuance of a search warrant shall personally appear and make application
therefor under oath, within the district where the property sought is alleged to
be, before an official authorized to issue a
warrant.
(2) The application shall
set forth the grounds for issuing the warrant and may be supported by statements
of others made under oath before the
official.
(3) The application and
statements may be either written or oral, but, whenever the official hearing the
application deems practicable, they shall be reduced to writing, signed by the
person or persons making them, and bear a record of the oath signed by the
person who administered it.
(4) If
the official hearing the application is satisfied that grounds for the
application exist or that there is probable cause to believe that they exist, he
shall issue a search warrant identifying the property and naming or describing
the person or place to be searched, except that any official other than a judge
of a district court may refuse to act if he deems that the public interest does
not require action before the matter can reasonably be presented to a judge of a
district court.
Source: FSM Code (1982).
§
306. Contents of search
warrant.
(1) A search warrant shall
command a policeman to search forthwith the person or place named, for the
property specified.
(2) The warrant
shall direct that it be served in the daytime, except that, if the statements
under oath in support of the application are positive that the property is on
the person or in the place to be searched, the warrant may, at the discretion of
the official issuing it, direct that it be served at any
time.
(3) It shall designate some
official authorized to issue a warrant, to whom it shall be returned, and,
whenever consistent with the reasonable expeditious handling of the matter, the
official so designated shall be a judge of a district
court.
(4) It shall designate the
time within which it may be executed and returned. This time shall not exceed 10
days, plus whatever time the official issuing the warrant determines will be
reasonably required for the policeman to travel to the point where the search is
to be made and to return such warrant to the appropriate
official.
Source: FSM Code (1982).
§
307. Execution of search warrant and return with
inventory.
(1) The policeman taking
property under a search warrant shall give to the person from whom or from whose
premises the property was taken a copy of the warrant and a receipt for the
property taken, or shall leave the copy and receipt at the place from which the
property was taken.
(2) The
policeman executing a search warrant shall promptly, upon completion of his
search, endorse upon the warrant and sign a brief statement of the action he has
taken pursuant to the warrant, showing the date on which the search was made,
the person or place searched, the person to whom he gave a copy of the warrant
and a receipt for the property taken, or the place where he left the copy and
receipt.
(3) He shall then deliver
the warrant, accompanied by a written inventory of any property taken, and the
property seized, to the official before whom the warrant is
returnable.
(4) The inventory shall
be made in the presence of the applicant for the warrant and the person from
whose possession or premises the property was taken, or in the presence of at
least one credible person other than the applicant for the warrant or the person
from whose possession or premises the property was taken, and shall be verified
by a statement signed and sworn to by the policeman to the effect that the
inventory is a true account of all property taken under the
warrant.
(5) The official before
whom a search warrant is returned shall, upon request, deliver a copy of the
inventory to the person from whom or from whose premises the property was taken
and to the applicant for the warrant.
Source: FSM Code (1982).
§
308. Hearing upon return of search
warrant.
(1) If the grounds on
which the warrant was issued are controverted, the official to whom a search
warrant is returned shall proceed to take testimony in relation thereto, and the
testimony of each witness shall be reduced to writing and subscribed by the
witness.
(2) If it appears that the
property taken is not the same as that described in the warrant or that there is
no probable cause for believing the existence of the grounds on which the
warrant was issued, the official must cause the property to be restored to the
person from whom it was taken; but if it appears that the property taken is the
same as that described in the warrant and that there is probable cause for
believing the existence of the grounds on which the warrant was issued, then the
official shall order the same retained in the custody of the person seizing it
or otherwise disposed of according to law.
Source: FSM Code (1982).
§
309. Filing of search warrant and accompanying
papers.
The official to whom a
search warrant is returned shall attach to the warrant the inventory and all
other papers in connection therewith, including any order made as to the
disposition of the property seized, and shall file such documents with the clerk
of courts for the district in which the property was seized.
Source: FSM Code (1982).
§
310. Oral order in lieu of search
warrant.
(1) A community court or
any judge thereof may, if the public interest so requires, issue an oral order
in place of a search warrant. Such oral order shall have the same force and
effect within the territorial jurisdiction of that court as a search warrant and
shall be returnable before the issuing court or
judge.
(2) An oral order in place
of a search warrant may be orally communicated to the person from whom or from
whose premises the property is taken, and no inventory shall be required in such
case, but the property seized shall be brought promptly before the court or
judge issuing the order, and the policeman executing it may orally report his
actions thereon.
(3) The court or
judge shall, upon request, allow the applicant for the order and the person from
whom or from whose premises the property was taken to view the property taken,
and shall report all actions in the matter to the clerk of courts for the
district as soon as possible.
(4)
If the grounds on which the order was issued are controverted, the court or
judge shall proceed to take testimony orally. Such testimony need not be reduced
to writing.
Source: FSM Code (1982).
§
311. Entering building or ship to execute search
warrant.
(1) If a building or ship
or any part thereof is designated as the place to be searched, the policeman
executing the warrant or oral order in place of a warrant may enter without
demanding permission if he finds the building or ship
open.
(2) If the building or ship
be closed, he shall first demand entrance in a loud voice and state that he
desires to execute a search warrant or an oral order in place thereof as the
case may be. If the doors, gates, or other bars to the entrance be not
immediately opened, he may force an entrance, by breaking them if necessary.
Having entered, he may demand that any other part of the building or ship, or
any closet, or other closed space within the place designated in the search
warrant in which he has reason to believe the property is concealed, be opened
for his inspection, and, if refused, he may break them. Whenever practicable
these demands and statements shall be made in a language generally understood in
the locality.
Source: FSM Code (1982).
§
312. Motion for return of property and to suppress
evidence.
(1) A person aggrieved by
an unlawful search and seizure may move the Trial Division of the High Court or
a district court in the district in which the property was seized for the return
of the property and to suppress for use as evidence anything so obtained. The
motion to suppress evidence may also be made in the court where the trial is to
be held and in which the evidence is sought to be
used.
(2) The motion shall be made
before trial or hearing unless opportunity therefor did not exist before trial
or hearing or the accused was not aware of the ground for the motion, but the
court in its discretion may entertain the motion at the trial or
hearing.
(3) Upon such motion the
court shall review any order previously made by the official before whom any
search warrant, or oral order in place thereof, was returned, and shall receive
evidence on any issue of fact necessary to the decision of the motion. If the
motion is granted the property shall be restored unless otherwise subject to
lawful detention and it shall not be admissible in evidence at any hearing or
trial.
Source: FSM Code (1982).
Annotations
Section 312 vests a court with authority to exclude evidence obtained by unlawful search and seizure. FSM v Tipen, 1 FSM Intrm 79, 92 (Pon 1982).
Fact that only two FSM Supreme Court justices and various state court and district court judges are authorized to execute warrants, does not justify neglect of police officers in obtaining warrants before seizing evidence. FSM v Mark, 1 FSM Intrm 284 (Pon 1983).
A court may suppress evidence obtained by an unlawful search and seizure. FSM v Santa, 8 FSM Intrm 266, 268 (Chk 1998).
When a search or seizure is conducted without a warrant the burden is on the government to justify the search or seizure, but when the search or seizure is conducted pursuant to a judicially-issued warrant the burden rests with the defendant to prove the illegality of the search or seizure. FSM v Santa, 8 FSM Intrm 266, 268 (Chk 1998).
§
313. Sale of perishable
property.
Seized property which is
perishable may be ordered sold and the proceeds brought into
court.
Source: FSM Code (1982).
§
314. Effect of irregularities in proceedings to issue search
warrant.
The proceedings before a
court or an official authorized to issue a search warrant shall not be
invalidated, nor any finding, order, or sentence set aside for any error or
omission, technical or otherwise, occurring in such proceedings, unless in the
opinion of the reviewing authority or a court hearing the case on appeal or
otherwise it shall appear that the error or omission has prejudiced the
accused.
Source: FSM Code (1982).
________
CHAPTER 4
Rights of Defendants
Sections:
§
401. Rights of defendants enumerated.
______
§
401. Rights of defendants
enumerated.
Every defendant in a
criminal case before a court of the Trust Territory shall be
entitled:
(1) To have in advance of trial a copy of the charge upon which he is to be tried;
(2) To consult counsel before the trial and to have an attorney at law or other representative of his own choosing defend him at the trial;
(3) To apply to the court for further time to prepare his defense, which the court shall grant if it is satisfied that the defendant will otherwise be substantially prejudiced in his defense;
(4) To bring with him to the trial such material witnesses as he may desire or to have them summoned by the court at his request;
(5) To give evidence on his own behalf at his own request at the trial, although he may not be compelled to do so;
(6) To have proceedings interpreted for his benefit when he is unable to understand them otherwise; and
(7) To request the appointment of an assessor in trials before the Trial Division of the High Court in the event that one has not been appointed by the Trial Judge under the provisions of Section 514 of Title 5 of this Code.
Source: FSM Code (1982).
_________
CHAPTER 5
Preliminary Matters
Sections:
§
501. Preliminary hearing-Duties of
official.
§
502. Preliminary hearing-Plea not to be
taken.
§ 503.
Pre-trial
procedure.
§
504. Disposition of the
record.
§ 505.
Preliminary examination upon request of person released on bail or personal
recognizance.
§
506. National offense-Detention of
accused.
§ 507.
National offense-Definition.
________
§
501. Preliminary hearing-Duties of
official.
When an arrested person
is brought before an official authorized to issue a warrant but such official is
not competent to try the arrested person for the offense charged, the official
shall:
(1) inform the arrested person of the charge or charges;
(2) inform the arrested person of his right to retain counsel and of his right to be released on bail as provided by law, and allow him reasonable time and opportunity to consult counsel, if desired;
(3) inform the arrested person of his right to have a preliminary examination, and of his right to waive the examination and the consequences of such waiver;
(4) inform the arrested person that he is not required to make a statement and that any statement that he does make may be used against him; and
(5) fix the amount of bail as provided by law if the arrested person so requests or alter the bail previously set if the official deems best.
Source: FSM Code (1982).
§
502. Preliminary hearing-Plea not to be
taken.
The arrested person shall
not be called upon to plead at the preliminary hearing.
Source: FSM Code (1982).
§
503. Pre-trial procedure.
(1) If
the arrested person does not waive preliminary examination, the official shall
hear the evidence within a reasonable
time.
(2) A reasonable continuance
shall be granted at the request of the arrested person or the prosecution to
permit preparation of evidence. The arrested person has the right to be released
on bail as provided by law during the period of a
continuance.
(3) The arrested
person may cross-examine witnesses against him and may introduce evidence in his
own behalf.
(4) If the arrested
person waives preliminary examination, or if from the evidence it appears to the
official that there is probable cause to believe that a criminal offense has
been committed and that the arrested person committed it, the official shall
forthwith:
(a) hold the arrested person to answer in a court competent to try him for the offense charged;
(b) fix, continue, or alter the bail as provided by law; and
(c) if bail is not provided, or a personal recognizance accepted, commit him to jail to await trial.
(5)
If during the preliminary examination it appears to the official that the
warrant of arrest, complaint or other statement of the charge or charges does
not properly name or describe the person arrested or does not set forth the
nature of the offense for which he was arrested or that although not guilty of
the offense specified there is probable cause to believe he has committed some
other offense, the official shall not discharge such person but shall forthwith
hold him to answer for the offense shown by the
evidence.
(6) If the arrested
person does not waive preliminary examination and from the evidence it does not
appear to the official that there is probable cause to believe that a criminal
offense has been committed and that the arrested person committed it, the
official shall discharge him.
Source: FSM Code (1982).
§
504. Disposition of the
record.
After concluding the
proceedings, the official shall transmit forthwith to the clerk of courts for
the district all papers in the proceedings and any bail taken by him; provided,
that when a person has been held to answer in a community court, the papers and
any bail taken shall be transmitted to the clerk of the community
court.
Source: FSM Code (1982).
§
505. Preliminary examination upon request of person released on bail or personal
recognizance.
If it appears it will
not be practicable to bring an arrested person promptly before a court as
indicated in Subsection (2) of Section 217 of this Chapter, and he has been
released on bail or personal recognizance, he may apply to a Judge of a district
court, if one is available, otherwise to any official authorized to issue a
warrant, and request a preliminary examination. Thereupon the judge or official
shall set a time and place for preliminary examination, give the complainant and
accused reasonable notice thereof, and proceed as outlined in Sections 501
through 504 of this Title.
Source: FSM Code (1982).
§
506. National offense-Detention of
accused.
For any offense against
the National Government of the Federated States of Micronesia, or for the
commission of any major crime, a Justice of the Supreme Court or any judicial
officer of any State where the accused may be found may cause the accused to be
arrested and confined or released for trial before the Supreme
Court.
Source: FSM Code (1982).
§
507. National
offense-Definition.
“Judicial
officer of any State” means a judge of a district court of the Trust
Territory, a judge or justice of any court of record established pursuant to the
charter of any district within the Federated States of Micronesia, or a judge or
justice of any court of record of a State of the Federated States of Micronesia;
or the clerk of court of any State only for the purpose of setting bail from a
bail system established by the Supreme Court.
Source: FSM Code (1982).
________
CHAPTER 6
Bail
Sections:
§
601. Right to
bail.
§ 602.
Who may fix bail; Allowing bail after
conviction.
§
603. Notice by police of requests to have bail
fixed.
§ 604.
Amount of
bail.
§ 605.
Form and disposition of bail; Sufficiency of
sureties.
§
606. Modification of
bail.
§ 607.
Exoneration and release of
bail.
§ 608.
Personal recognizance.
________
§
601. Right to bail.
(1) Any person
arrested for a criminal offense, other than murder in the first degree, shall be
entitled as a matter of right to be released on bail before conviction;
provided, however, that no person shall be so released while he is so under the
influence of intoxicating liquor or drugs that there is a reasonable ground to
believe he will be offensive to the general
public.
(2) A person arrested for
murder in the first degree may be released on bail by any judge who is
authorized to be assigned by the Chief Justice to sit in the Appellate Division
of the High Court; provided, that the district attorney shall be given
reasonable opportunity to be heard before any application for bail is
granted.
Source: FSM Code (1982).
§
602. Who may fix bail; Allowing bail after
conviction.
(1) In the case of any
person arrested for a criminal offense, other than murder in the first degree,
any court or any official authorized to issue a warrant may fix the bail prior
to conviction. This may be done at the time of issuing the warrant and endorsed
on the warrant or may be done at any time prior to
conviction.
(2) After conviction
bail may be allowed only if a stay of execution of the sentence has been granted
and only in the exercise of discretion by a court authorized to order a stay or
by a judge thereof.
Source: FSM Code (1982).
§
603. Notice by police of requests to have bail
fixed.
When any arrested person for
whom bail has not been fixed, or to whom bail has been once denied in the case
of murder in the first degree, notifies any policeman or jail attendant that he
desires to give bail, an official authorized to fix bail shall be promptly
notified by the police authorities. The arrested person shall be brought before
the official for this purpose if the official so requests.
Source: FSM Code (1982).
§
604. Amount of bail.
The amount of
bail shall be such as, in the judgment of the court or official fixing it, will
insure the presence of the accused in the future. The determination of the court
or official should take into account the nature and circumstances of the offense
charged, the weight of the evidence against him, the financial ability of the
accused to give bail, and the character of the accused.
Source: FSM Code (1982).
§
605. Form and disposition of bail; Sufficiency of
sureties.
(1) Cash or bonds or
notes of the United States may be accepted as
bail.
(2) If a bail bond is given,
one or more sureties may be required. A person of good standing in the community
who is in a position of moral or customary authority over the accused, such as
his father, the head of his extended family group, or the chief of his lineage
or clan, may be accepted as surety without the disclosure of property by way of
justification, if the official taking bail or determining the sufficiency of the
surety considers that such surety will reasonably guarantee the appearance of
the accused. Otherwise, no surety or sureties are to be accepted unless their
combined net worth over and above all just debts and obligations is not less
than the amount of the bond. Any surety may be required to furnish proof of his
sufficiency, either by his own oath or
otherwise.
(3) If the official to
whom the bail is tendered refuses to accept the surety or sureties offered, the
question of their sufficiency shall, at the request of the accused, be referred
promptly to a judge for determination. The determination of the judge shall be
final.
(4) Any bail accepted shall
be promptly transmitted to the clerk of courts for the district; provided, that
when a person has been released to appear in accordance with the orders of a
community court, the bail shall be transmitted to the clerk of the community
court.
Source: FSM Code (1982).
§
606. Modification of
bail.
The
court before which a criminal case is pending may, for cause shown, either
increase or decrease the bail or require an additional surety or sureties or
allow substitution of sureties. If increased bail or an additional surety or
sureties is required, the accused may be committed to custody unless he gives
bail in the increased amount or furnishes additional surety or sureties as
required.
Source: FSM Code (1982).
§
607. Exoneration and release of
bail.
When the condition for which
the bail was given has been satisfied, the court shall exonerate the obligors
and release any bail. A surety may be exonerated by a deposit of cash in the
amount of the bail bond or by a timely surrender of the accused into
custody.
Source: FSM Code (1982).
§
608. Personal recognizance.
In the
case of an arrest for any criminal offense, the lawful punishment for which does
not exceed a fine of $100, or 6 months imprisonment, or both, any court or
official authorized to fix bail may, in the exercise of discretion, order that
the arrested person be released on his personal recognizance in such sum as the
court or official may fix, without security, into the custody of a responsible
member of the community, provided the arrested person has a usual place of abode
or of business or employment in the Trust Territory.
Source: FSM Code (1982).
__________
CHAPTER 7
Witnesses
Sections:
§
701. Witness
summons.
§ 702.
Detention and release of witness.
__________
§
701. Witness summons.
A witness
summons in a proceeding before an official authorized to issue a warrant, who is
not a court, may be issued by such an official. Failure by any person without
adequate excuse to obey such a witness summons may be deemed a contempt of the
district court within whose territorial jurisdiction it was
issued.
Source: FSM Code (1982).
§
702. Detention and release of
witness.
(1) Whenever the court has
reason to believe that a witness may be intimidated or become unavailable at the
trial, he may be detained as a material witness; provided, that no such person
shall be detained for a period of more than 21 days without a further order
being made. A report of such detention shall be made forthwith in the manner
provided for the transmission of the
record.
(2) A person detained as a
material witness shall be entitled to be released as a matter of right upon
giving bail for his appearance as witness in an amount fixed by the court
ordering the detention or any higher court. The court ordering the detention, or
any higher court, may order the witness’s release without bail if he has
been detained for an unreasonable length of time and may modify at any time the
requirement as to bail.
Source: FSM Code (1982).
________
CHAPTER 8
Dismissal
Sections:
§
801. Dismissal by Attorney General or district
attorney.
§
802. Dismissal by court.
_______
§
801. Dismissal by Attorney General or district
attorney.
The Attorney General or
the district attorney may by leave of court file a dismissal of an information,
or complaint, or citation, and the prosecution shall thereupon terminate. Such a
dismissal may not, however, be filed during the trial without the consent of the
accused.
Source: FSM Code (1982).
§
802. Dismissal by court.
If there
is unnecessary delay in bringing an accused to trial, the court may dismiss an
information, or complaint, or citation.
Source: FSM Code (1982).
___________
CHAPTER 9
Insanity
Sections:
§
901. Insanity at time of
offense.
§ 902.
Insanity at time of trial.
_______
§
901. Insanity at time of
offense.
If it is ascertained by
the court upon competent medical or other evidence that the accused at the time
of committing the offense with which he is charged was so insane as not to know
the nature and quality of his act, the court shall record a finding of such fact
and may make an order pursuant to Section 1802 of Title 6 of this
Code.
Source: FSM Code (1982).
§
902. Insanity at time of trial.
If
the court ascertains that the accused is insane at the time of trial, the court
shall adjourn the trial and order the accused to be detained as in Section 901
of this Chapter.
Source: FSM Code (1982).
_____
CHAPTER 10
(Repealed by PL 5-22 § 1)
______
CHAPTER 11
Juveniles
Sections:
§
1101. Adoption of flexible procedures by
courts.
§ 1102.
Delinquent child
defined.
§
1103. Conduct of proceedings; Delinquency not a
crime.
§ 1104.
Proceedings-Where
brought.
§
1105.
Confinement.
§
1106. Orders regarding persons encouraging, causing, or contributing to
delinquency;
Appeals.
§
1107. Liability of parents for acts of delinquent child.
_______
§
1101. Adoption of flexible procedures by
courts.
(1) In cases involving
offenders under the age of 18 years, courts shall adopt a flexible procedure
based on the accepted practices of juvenile courts of the United States,
including insofar as possible the following measures:
(a) report by a welfare or probation officer in advance of trial;
(b) detention, where necessary, apart from adult offenders;
(c) hearing informally in closed session;
(d) interrogation of parents or guardians and release in their custody if appropriate.
(2)
An offender 16 years of age or over may, however, be treated in all respects as
an adult if in the opinion of the court his physical and mental maturity so
justifies.
Source: FSM Code (1982).
Annotations
The National Criminal Code places exclusive jurisdiction in the National courts over allegations of violations of the Code and makes no exception to that jurisdiction for crimes committed by juveniles. FSM v Albert, 1 FSM Intrm 14, 15 (Pon 1981).
If a provision of the juvenile code is in conflict with the National Criminal Code, the national criminal code constitutes an amendment or repeal of that provision, but the repeal is only to the extent of the inconsistency. FSM v Albert, l FSM Intrm 14, 16 (Pon 1981).
Section 1101 remains in effect, and coupled with the court’s broad rule-making powers under Article XI, Section 9 of the Constitution, calls for the court to institute special procedures for consideration of criminal charges against juveniles. FSM v Albert, 1 FSM Intrm 14, 17 (Pon 1981).
§
1102. Delinquent child defined.
As
used in this Title, “delinquent child” includes any
child:
(1) who violates any Trust Territory or district law, except that a child who violates any traffic law or regulation shall be designated as a “juvenile traffic offender” and shall not be designated as a delinquent unless it be so ordered by the court after hearing the evidence; or
(2) who does not subject himself to the reasonable control of his parents, teachers, guardian, or custodian, by reason of being wayward or habitually disobedient; or
(3) who is a habitual truant from home or school; or
(4) who deports himself so as to injure or endanger the morals or health of himself or others.
Source: FSM Code (1982).
§
1103. Conduct of proceedings; Delinquency not a
crime.
Proceedings against a person
under 18 years of age as a delinquent child shall be conducted in accordance
with the provisions of this Chapter, and an adjudication that a person is a
delinquent child shall not constitute a criminal conviction.
Source: FSM Code (1982).
§
1104. Proceedings-Where
brought.
Proceedings against a
person as a delinquent child may be brought in the Trial Division of the High
Court, or in the district or community court having jurisdiction over the place
where the delinquency or any part of it occurred, except that if the acts
charged may legally constitute murder or rape of which the person is not
conclusively presumed to be incapable by law, the proceedings shall be brought
only in the Trial Division of the High Court.
Source: FSM Code (1982).
§
1105. Confinement.
A person
adjudged to be a delinquent child may be confined in such place, under such
conditions, and for such period as the court deems the best interests of the
child require, not exceeding the period for which he might have been confined if
he were not treated as a juvenile offender under this Chapter.
Source: FSM Code (1982).
§
1106. Orders regarding persons encouraging, causing, or contributing to
delinquency; Appeals.
(1) In any
juvenile delinquency proceeding, if it is found by the court that any person is
encouraging, causing, or contributing to acts or conditions which result in an
adjudication of the delinquency of a child, the court may require such person to
be brought before the court and, after hearing, may order such person to do any
specific thing which falls within the duty owed by such person to the child, or
refrain from doing any specific act inconsistent with that duty, and, upon the
failure of such person to comply with the order of the court, he may be
proceeded against for criminal or civil contempt of
court.
(2) An adjudication in
juvenile delinquency proceedings and all orders in connection with such
adjudication shall be subject to appeal as in civil actions, except that no
filing fees shall be required.
Source: FSM Code (1982).
§
1107. Liability of parents for acts of delinquent
child.
(1) A parent or guardian
having custody of a child is charged with the control of such child and shall
have the power to exercise parental control and authority over such
child.
(2) In any case where a
child is found delinquent and placed on probation, if the court finds at the
hearing that the parent or guardian having custody of such child has failed or
neglected to subject him to reasonable parental control and authority, and that
such failure or neglect is the proximate cause of the act or acts of the child
upon which the finding of delinquency is based, the court may require such
parent to enter into a recognizance with sufficient surety, in an amount of not
more than $100, conditioned upon the faithful discharge of the conditions of
probation of such child.
(3) If the
child thereafter commits a second act and is by reason thereof found delinquent,
or violates the conditions of probation, and the court finds at the hearing that
the failure or neglect of such parent to subject him to reasonable parental
control and authority, or to faithfully discharge the conditions of probation of
such child on the part of such parent is the proximate cause of the act or acts
of the child upon which such second finding of delinquency is based, or upon
which such child is found to have violated the conditions of his probation, the
court may declare all or a part of the recognizance forfeited and the amount of
such forfeited recognizance shall be applied in payment of any damages;
otherwise, the proceeds therefrom, or part remaining after the payment of
damages as aforesaid, shall be paid into the district treasury.
Source: FSM Code (1982).
________
CHAPTER 12
Joint Administration of Law Enforcement
Sections:
§
1201.
Definitions.
§
1202. Joint administration of law enforcement
functions.
§
1203. Joint-administration
agreements.
§
1201. Definitions.
As used in this
Chapter:
(1) “Law enforcement function” means any duty, responsibility, authority, or discretion in connection with enforcement of the criminal laws of the Federated States of Micronesia which under the Constitution of the Federated States of Micronesia and National laws is vested in the executive branch of the National Government.
(2) “National offense” means an offense defined by the National Criminal Code of the Federated States of Micronesia or a major crime contained in other applicable laws.
Source: FSM Code (1982).
Annotations
State law enforcement officers are generally authorized to enforce criminal laws of the National Government as well as the State; in evaluating the conduct of such officers, the court must consider both State and National law. Ishizawa v Pohnpei, 2 FSM Intrm 67, 71 (Pon 1985).
When State government is acting on behalf of the National Government by virtue of the Joint Administration of Law Enforcement Act, the State officers and employees are agents of the National Government and are acting “under color of authority” within the meaning of 6 FSMC 702 (5). Plais v Panuelo, 5 FSM Intrm 179, 209 (Pon 1991).
The National Government is liable for civil rights violation when it has abdicated its responsibility toward National prisoner. Plais v Panuelo, 5 FSM Intrm 179, 210 (Pon 1991).
The joint law enforcement agreement in no way affects the ability of a National court to require a jailer who has accepted custody of a prisoner to act in conformity with the sentencing order. Soares v FSM, 4 FSM Intrm 78, 84 (App 1989).
§
1202. Joint administration of law enforcement
functions.
The President of the
Federated States of Micronesia may authorize appropriate State government
officials to act on behalf of the National Government in performing the
following law enforcement functions:
(1) detection and prevention of National offenses;
(2) arrest and detention of persons having committed or being charged with a National offense;
(3) investigation and prosecution of criminal cases involving the commission of a National offense;
(4) providing legal defense and assistance to persons being prosecuted for a National offense;
(5) incarceration of persons convicted of a National offense and under a sentence of imprisonment;
(6) granting of parole to persons convicted of a National offense and eligible under applicable laws for parole from a sentence of imprisonment;
(7) probation and parole supervision over persons serving a penal sentence following conviction of a National offense; and
(8) extradition and transfer of prisoners.
Source: PL 5-23 § 1.
§
1203. Joint-administration
agreements.
Joint administration of
law enforcement functions pursuant to Section 1202 of this Chapter shall be
undertaken only as provided for in a formal written agreement between the
President and the State government with which joint administration of law
enforcement functions is to be established. An agreement for joint
administration of the law enforcement functions specified in Section 1202 of
this Chapter shall clearly define policies and procedures under which State
government officials may act on behalf of the National Government. Each
agreement for joint administration of law enforcement functions between the
National Government and a State government shall be signed by the President and
shall expressly reserve to the President final legal and administrative
authority for the proper and lawful performance of National law enforcement
functions.
Source: FSM Code (1982).
________
CHAPTER 13
Justice Improvement Commission
Sections:
§
1301. Findings and
purpose.
§
1302. Justice Improvement
Commission.
§
1303. Supervisory board created-Membership;
Compensation.
§
1304. Supervisory board meetings; Quorum; Committee;
Bylaws.
§ 1305.
Executive administrator; Commission
staff.
§ 1306.
Reports.
§
1307. Termination.
_________
§
1301. Findings and purpose.
The
Congress finds and declares that:
(1) crime and delinquency are complex social phenomena requiring the attention and efforts of the criminal justice system, territorial and district governments, and private citizens alike;
(2) the establishment of appropriate goal, objectives, and standards for the reduction of crime and delinquency and for the administration of justice must be a priority concern;
(3) the functions of the criminal justice system must be coordinated more efficiently and effectively;
(4) the full and effective use of resources affecting territorial and district criminal justice systems requires the complete cooperation of territorial and district government agencies;
(5) training, research, evaluation, technical assistance, and public education activities must be encouraged and focused on the improvement of the criminal justice system and the generation of new methods for the prevention and reduction of crime and delinquency; and
(6) for the foregoing reasons and in order for the Trust Territory to continue to be eligible to receive funding from the Law Enforcement Assistance Administration of the United States Justice Department (hereinafter referred to as “LEAA”), it is necessary to create a planning agency to address the problems and needs of the criminal and juvenile justice systems of the Trust Territory.
Source: FSM Code (1982).
§
1302. Justice Improvement
Commission.
There is hereby created
within the executive branch of the government of the Trust Territory of the
Pacific Islands the Justice Improvement Commission (hereinafter referred to as
the “Commission”) which shall be under the jurisdiction of the High
Commissioner and shall have the following powers and duties:
(1) serve as the territorial planning agency to address the needs of the criminal and juvenile justice systems of the Trust Territory;
(2) advise and assist the High Commissioner in developing policies, plans, programs, and budgets for improving the coordination, administration, and effectiveness of the criminal justice system in the territory;
(3) prepare a territory-wide comprehensive criminal justice plan on behalf of the High Commissioner. Such plan, and any substantial modifications thereto, shall be submitted to the Congress of the Federated States of Micronesia for its advisory review of the goals, priorities, and policies contained therein. Such plan, to be periodically updated, shall be based on an analysis of the territory’s criminal justice needs and problems and shall be in conformance with territorial and other appropriate regulations;
(4) establish goals, priorities, and standards for the reduction of crime and the improvement of the administration of justice in the territory;
(5) recommend legislation to the High Commissioner and the Congress in the criminal justice field;
(6) encourage local comprehensive criminal justice planning efforts;
(7) monitor and evaluate programs and projects, funded in whole or in part by the Territory Government, aimed at reducing crime and delinquency and improving the administration of justice;
(8) cooperate with and render technical assistance to territorial agencies and units of general local government and public or private agencies relating to the criminal justice system;
(9) apply for, contract for, receive, and expend for its purposes any appropriations or grants from the Trust Territory, the Federal Government, or any other source, public or private, in accordance with the appropriations process;
(10) have the authority to collect from the public cords of any Trust Territory local governmental entity information, data, reports, statistics, or such other material which is necessary to carry out its duties and functions; and
(11) perform such other duties as may be necessary to carry out the purposes of this Chapter.
Source: FSM Code (1982).
§
1303. Supervisory board created-Membership;
Compensation.
(1) The supervisory
board of the Justice Improvement Commission shall consist of fifteen members
appointed by the High Commissioner in consultation with the presiding officers
of the Interim Congress of the Federated States of Micronesia, or its successor.
The composition of the supervisory board shall be representative of the
composition of the juvenile and criminal justice systems of the Trust Territory.
The supervisory board shall include, but not be limited to, members selected
from the following groups: police agencies, the judiciary, prosecution and
defense counsels, adult correctional and rehabilitative agencies, juvenile
justice agencies, territorial and district government, public and private
agencies related to the criminal justice system, and the private
citizenry.
(2) Each member shall
serve for a 4-year term and may be reappointed for no more than one additional
consecutive term, unless LEAA regulations provide that a member’s term
must be extended by virtue of the nature of his membership on the supervisory
board.
(3) Should any member cease
to be an officer or employee of the unit or agency he is appointed to represent,
his membership on the supervisory board shall terminate immediately and a new
member shall be appointed in the same manner as his predecessor to fill the
unexpired term. Other vacancies occurring, except those by the expiration of a
term, shall be filled for the balance of the unexpired term in the same manner
as the original appointment within 30 days of the
vacancy.
(4) The supervisory board
shall elect a chairman from among the members. A vice chairman shall be selected
by the supervisory board from among its members and shall serve as chairman in
the event of the chairman’s
absence.
(5) A member of the
supervisory board is not entitled to a salary for duties performed as a member
of the supervisory board. Each member is entitled to reimbursement for travel
and other necessary expenses incurred in the performance of official supervisory
board duties.
Source: FSM Code (1982).
§
1304. Supervisory board meetings; Quorum; Committee;
Bylaws.
(1) The supervisory board
shall meet a least once a year and at such other times designated by the
chairman.
(2) Eight members shall
constitute a quorum.
(3) The
supervisory board may establish committees as it deems
advisable.
(4) All meetings of the
supervisory board, or any committee thereof, at which public business is
discussed or formal action is taken shall be announced and open to the
public.
(5) The supervisory board
and any other committee or organization, for the purposes of this Chapter, shall
provide for public access to all records elating to its functions under this
Chapter, except such records as are required to be kept confidential by any
other provisions of territorial or local law or by the requirements of any of
the Commission’s funding sources.
Source: FSM Code (1982).
§
1305. Executive administrator; Commission
staff.
(1) The supervisory board
shall appoint, with the approval of the High Commissioner, an executive
administrator for the Commission, who shall serve at the pleasure of the High
Commissioner and who shall be paid such compensation as the High Commissioner
may determine. The executive administrator may employ additional personnel to
carry out the purposes of this
Chapter.
(2) Commission staff shall
be employed in accordance with Trust Territory personnel regulations and shall
be subject to its provisions.
Source: FSM Code (1982).
§
1306. Reports.
(1) The Commission
shall submit an annual report to the High Commissioner and to the Congress
concerning its work during the preceding calendar
year.
(2) Other studies,
evaluations, crime data analyses, and reports may be submitted to the High
Commissioner or the Congress as deemed appropriate or as
requested.
Source: FSM Code (1982).
§
1307. Termination.
The High
Commissioner shall:
(1) conduct periodic reviews of the Commission’s overall performance, including but not limited to, a study of its effectiveness in accomplishing its general purposes; and
(2) make public and submit to the Congress a report on the findings of the review conducted pursuant to Subsection (1) of this Section. Such report shall include a recommendation that the authority of this Chapter be extended, that the Commission be reorganized, or that the authority of this Chapter be allowed to lapse.
Source: FSM Code (1982).
_________
CHAPTER 14
Criminal Extradition
Sections:
§
1401. Scope and limitation of
chapter.
§
1402. Fugitives from foreign country to Federated States of
Micronesia.
§
1403. Secretary of External Affairs to surrender
fugitive.
§
1404. Time of commitment pending
extradition.
§
1405. Place and character of
hearing.
§
1406. Evidence on
hearing.
§
1407. Witnesses for indigent
fugitives.
§
1408. Protection of
accused.
§
1409. Receiving and transporting
offenders.
§
1410. Payment of fees and costs.
_________
§
1401. Scope and limitation of
chapter.
The provisions of this
Chapter relating to the surrender of persons who have committed crimes in
foreign countries shall continue in force only during the existence of any
extradition agreement with such foreign government and shall be read in light of
and consistent with the extradition agreement pursuant to which a request for
extradition is made.
Source: PL 5-22 § 2.
§
1402. Fugitives from foreign country to Federated States of
Micronesia.
Whenever there is an
agreement for extradition between the Federated States of Micronesia and any
foreign government, any Federated States of Micronesia justice or any judge
authorized to do so by a Federated States of Micronesia court may, upon
complaint made under oath charging any person found within his jurisdiction with
having committed within the jurisdiction of any such foreign government any of
the crimes provided for by such agreement, issue his warrant for the
apprehension of the person so charged, that he may be brought before such
justice or judge, to the end that the evidence of criminality may be heard and
considered. If, on such hearing, he deems the evidence sufficient to sustain the
charge under the provisions of the proper treaty or convention, he shall certify
the same, together with a copy of all the testimony taken before him, to the
Secretary of External Affairs, that a warrant may issue upon the requisition of
the proper authorities of such foreign government, for the surrender of such
person, according to the stipulations of the treaty or convention; and he shall
issue his warrant for the commitment of the person so charged to the proper
jail, there to remain until such surrender shall be made.
Source: PL 5-22 § 3.
§
1403. Secretary of External Affairs to surrender
fugitive.
The Secretary of External
Affairs may order the person committed under Section 1402 of this Title to be
delivered to any authorized agent of such foreign government, to be tried for
the offenses of which charged. Such agent may hold such person in custody, and
take him to the territory of such foreign government, pursuant to such treaty. A
person so accused who escapes may be retaken in the same manner as any person
accused of any offense.
Source: PL 5-22 § 4.
§
1404. Time of commitment pending
extradition.
Whenever any person
who is committed for rendition to a foreign government to remain until delivered
up in pursuance of a requisition, is not so delivered up and conveyed out of the
Federated States of Micronesia within 2 calendar months after such commitment,
over and above the time actually required to convey the prisoner from the jail
to which he was committed, by the readiest way, out of the Federated States of
Micronesia, any Federated States of Micronesia justice or any judge authorized
to do so by a Federated States of Micronesia court upon application made to him
by or on behalf of the person so committed, and upon proof made to him that
reasonable notice of the intention to make such application has been given to
the Secretary of External Affairs, may order the person so committed to be
discharged out of custody, unless sufficient cause is shown to such judge why
such discharge ought not to be ordered.
Source: PL 5-22 § 5.
§
1405. Place and character of
hearing.
Hearings in cases of
extradition under an extradition agreement shall be held on land, publicly, and
in a courthouse easily accessible to the public.
Source: PL 5-22 § 6.
§
1406. Evidence on
hearing.
Depositions, warrants, or
other papers or copies thereof offered in evidence upon the hearing of any
extradition case shall be received and admitted as evidence on such hearing for
all the purposes of such hearing if they shall be properly and legally
authenticated so as to entitle them to be received for similar purposes by the
tribunals of the foreign country from which the accused party shall have
escaped, and the certificate of the principal representative or liaison officer
of the Federated States of Micronesia resident in such foreign country, if any,
shall be proof that the same, so offered, are authenticated in the manner
required. Depositions, warrants, or other papers or copies thereof offered in
evidence upon the hearing of any extradition case may also be authenticated by
any means provided for in an extradition agreement.
Source: PL 5-22 § 7.
§
1407. Witnesses for indigent
fugitives.
On the hearing of any
case under a claim of extradition by a foreign government, upon affidavit being
filed by the person charged setting forth that there are witnesses whose
evidence is material to his defense, that he cannot safely go to trial without
them, what he expects to prove by each of them, and that he is not possessed of
sufficient means, and is actually unable to pay the fees of such witnesses, the
justice or judge hearing the matter may order that such witnesses be subpoenaed;
and the costs incurred by the process, and the fees of witnesses, shall be paid
in the same manner as in the case of witnesses subpoenaed in behalf of the
Federated States of Micronesia.
Source: PL 5-22 § 8.
§
1408. Protection of
accused.
Whenever any person is
delivered by any foreign government to an agent of the Federated States of
Micronesia, for the purpose of being brought within the Federated States of
Micronesia and tried for any offense of which he is duly accused, the Attorney
General shall have power to take all necessary measures for the transportation
and safekeeping of such accused person, and for his security against lawless
violence, until the final conclusion of his trial for the offenses specified in
the warrant of extradition, and until his final discharge from custody or
imprisonment for or on account of such offenses, and for a reasonable time
thereafter.
Source: PL 5-22 § 9.
§
1409. Receiving and transporting
offenders.
An officer of the
Division of Security and Investigation or a State police officer authorized by
the Attorney General shall receive, in behalf of the Federated States of
Micronesia, the delivery, by a foreign government, of any person accused of a
crime committed within the Federated States of Micronesia, and shall convey him
to the place of his trial.
Source: PL 5-22 § 10.
§
1410. Payment of fees and
costs.
(1) All costs or expenses
incurred in any extradition proceeding in apprehending, securing, and
transmitting a fugitive shall be paid by the demanding authority. All witness
fees and costs of every nature in cases of international extradition shall be
certified by the justice or judge before whom the hearing shall take place to
the Attorney General, and the same shall be paid out of appropriations to defray
the expenses of the judiciary or the Office of the Attorney General as the case
may be.
(2) The Attorney General
shall certify to the Secretary of External Affairs the amounts to be paid to the
Federated States of Micronesia on account of said fees and costs in extradition
cases by the foreign government requesting the extradition, and the Secretary of
External Affairs shall cause said amounts to be collected and transmitted to the
Attorney General for deposit in the General Fund of the Federated States of
Micronesia.
Source: PL 5-22 § 11.
______
CHAPTER 15
Criminal Extradition Procedures
Sections:
§
1501. Scope and limitation of
chapter.
§
1502.
Definitions.
§
1503. Authority of the Attorney
General.
§
1504. Applicability of Federated States of Micronesia
laws.
§ 1505.
Transfer of offenders on
probation.
§
1506. Transfer of offenders serving sentence of
imprisonment.
§
1507. Transfer of offenders on
parole.
§ 1508.
Verification of consent of offender to transfer from the Federated States of
Micronesia.
§
1509. Verification of consent of offender to transfer to the Federated States of
Micronesia.
§
1510. Right to counsel; Appointment of
counsel.
§
1511. Transfer of
juveniles.
§
1512. Prosecution barred by foreign
conviction.
§
1513. Loss of rights;
Disqualification.
§
1514. Status of alien offender transferred to a foreign
country.
§
1515. Return of transferred
offenders.
§
1516. Execution of sentences imposing an obligation to make restitution or
reparations.
_________
§
1501. Scope and limitation of
chapter.
(1) The provisions of this
Chapter relating to the transfer of offenders shall be applicable only when an
international agreement providing for such a transfer is in force, and shall
only be applicable to transfers of offenders to and from a foreign country
pursuant to such an agreement. The provisions of this Chapter shall be read in
light of and consistent with the international agreement pursuant to which a
request for transfer is made. A sentence imposed by a foreign country upon an
offender who is subsequently transferred to the Federated States of Micronesia
pursuant to an international agreement shall be subject to being fully executed
in the Federated States of Micronesia even though the international agreement
under which the offender was transferred is no longer in
force.
(2) An offender may be
transferred from the Federated States of Micronesia pursuant to this Chapter
only to a country of which the offender is a citizen or national. Only an
offender who is a citizen or national of the Federated States of Micronesia may
be transferred to the Federated States of Micronesia. An offender may be
transferred to or from the Federated States of Micronesia only with the
offender’s consent, and only if the offense for which the offender was
sentenced satisfies the requirement of double criminality as defined in Section
1502 of this Title. Once an offender’s consent to transfer has been
verified by a verifying officer, that consent shall be irrevocable. If at the
time of transfer the offender is under 18 years of age the transfer shall not be
accomplished unless consent to the transfer is given by a parent or guardian or
by an appropriate court of the sentencing
country.
(3) An offender shall not
be transferred to or from the Federated States of Micronesia if a proceeding by
way of appeal or of collateral attack upon the conviction or sentence is
pending.
(4) The Federated States
of Micronesia upon receiving notice from the country which imposed the sentence
that the offender has been granted a pardon, commutation, or amnesty, or that
there has been an ameliorating modification or a revocation of the sentence
shall give the offender the benefit of the action taken by the sentencing
country.
Source: PL 5-22 § 12.
§
1502. Definitions.
As used in this
Chapter:
(1) “Double criminality” means that at the time of transfer of an offender the offense for which he has been sentenced is still an offense in the transferring country and is also an offense in the receiving country. With regard to a country which has a federal form of government, an act shall be deemed to be an offense in that country if it is an offense under the federal laws or the laws of any State or province thereof;
(2) “Imprisonment” means a penalty imposed by a court under which the individual is confined to an institution;
(3) “International agreement” means an agreement concluded by the Federated States of Micronesia with another nation or nations pursuant to which an offender sentenced in the courts of one country may be transferred to the country of which he is a citizen or national for the purpose of serving the sentence;
(4) “Juvenile” means a person who is under 18 years of age;
(5) “Juvenile delinquency” means:
(a) A violation of the laws of the Federated States of Micronesia or a State thereof or of a foreign country or a State or province thereof committed by a juvenile which would have been a crime if committed by an adult; or
(b) Noncriminal acts committed by a juvenile for which supervision or treatment by juvenile authorities of the Federated States of Micronesia, a State thereof, or of the foreign country concerned, or a State or province thereof, is authorized;
(6) “Offender” means a person who has been convicted of an offense or who has been adjudged to have committed an act of juvenile delinquency;
(7) “Parole” means any form of release of an offender from imprisonment to the community by a releasing authority prior to the expiration of his sentence, subject to conditions imposed by the releasing authority and to its supervision;
(8) “Probation” means any form of sentence to a penalty of imprisonment the execution of which is suspended and the offender is permitted to remain at liberty under supervision and subject to conditions for the breach of which the suspended penalty of imprisonment may be ordered executed;
(9) “Sentence” means not only the penalty imposed but also the judgment of conviction in a criminal case or a judgment of acquittal in the same proceeding, or the adjudication of delinquency in a juvenile delinquency proceeding or dismissal of allegations of delinquency in the same proceedings;
(10) “State” means any State of the Federated States of Micronesia; and
(11) “Transfer” means a transfer of an individual for the purpose of the execution in one country of a sentence imposed by the courts of another country.
Source: PL 5-22 § 13.
§
1503. Authority of the Attorney
General.
The Attorney General is
authorized:
(1) To act on behalf of the Federated States of Micronesia as the authority referred to in an international agreement;
(2) To receive custody of offenders under a sentence of imprisonment, on parole, or on probation who are citizens or nationals of the Federated States of Micronesia transferred from foreign countries and as appropriate confine them in penal or correctional institutions, or assign them to the probation authorities for supervision;
(3) To transfer offenders under a sentence of imprisonment or on probation to the foreign countries of which they are citizens or nationals;
(4) To make regulations, in accordance with Chapter 1 of Title 17 of the Code of the Federated States of Micronesia, for the proper implementation of such treaties in accordance with this Chapter and to make regulations to implement this Chapter;
(5) To render to foreign countries and to receive from them the certifications and reports required to be made under such treaties;
(6) To make arrangements by agreement with the States for the transfer of offenders in their custody who are citizens or nationals of foreign countries to the foreign countries of which they are citizens or nationals and for the confinement, where appropriate, in State institutions of offenders transferred to the Federated States of Micronesia;
(7) To make agreements and establish regulations for the transportation through the territory of the Federated States of Micronesia of offenders convicted in a foreign country who are being transported to a third country for the execution of their sentences, the expenses of which shall be paid by the country requesting the transportation;
(8) To make agreements with the appropriate authorities of a foreign country and to issue regulations for the transfer and treatment of juveniles who are transferred pursuant to an international agreement, the expenses of which shall be paid by the country of which the juvenile is a citizen or national;
(9) In concert with the Director of the Office of Health Services, to make arrangements with the appropriate authorities of a foreign country and to issue regulations, in accordance with Chapter 1 of Title 17 of the Code of the Federated States of Micronesia, for the transfer and treatment of individuals who are accused of an offense but who have been determined to be mentally ill, the expenses of which shall be paid by the country of which such person is a citizen or national;
(10) To receive, on behalf of the Federated States of Micronesia, the delivery by a foreign government of any citizen or national of the Federated States of Micronesia being transferred to the Federated States of Micronesia for the purpose of serving a sentence imposed by the courts of the foreign country, and to convey him within the Federated States of Micronesia.
Source: PL 5-22 § 14.
§
1504. Applicability of Federated States of Micronesia
laws.
All laws of the Federated
States of Micronesia, as appropriate, pertaining to prisoners, probationers, and
juvenile offenders shall be applicable to offenders transferred to the Federated
States of Micronesia, unless an international agreement or this Chapter provides
otherwise.
Source: PL 5-22 § 15.
§
1505. Transfer of offenders on
probation.
(1) Prior to consenting
to the transfer to the Federated States of Micronesia of an offender who is on
probation, the Attorney General shall determine that the appropriate Federated
States of Micronesia court is willing to undertake the supervision of the
offender.
(2) Upon the receipt of
an offender on probation from the authorities of a foreign country, the Attorney
General shall cause the offender to be brought before the Federated States of
Micronesia court which is to exercise supervision over the
offender.
(3) The court shall place
the offender under the supervision of a justice ombudsman of the court. The
offender shall be supervised by a justice ombudsman, under such conditions as
are deemed appropriate by the court as though probation had been imposed by the
Federated States of Micronesia
court.
(4) The probation may be
revoked in accordance with the Rules of Criminal Procedure for the Trial
Division of the Supreme Court of the Federated States of Micronesia. A violation
of the conditions of probation shall constitute grounds for revocation. If
probation is revoked the suspended sentence imposed by the sentencing court
shall be executed.
(5) The
provisions of Section 1506 of this Title shall be applicable following a
revocation of probation.
(6) Prior
to consenting to the transfer from the Federated States of Micronesia of an
offender who is on probation, the Attorney General shall obtain the assent of
the court exercising jurisdiction over the probationer.
Source: PL 5-22 § 16.
§
1506. Transfer of offenders serving sentence of
imprisonment.
(1) Except as
provided elsewhere in this Section, an offender serving a sentence of
imprisonment in a foreign country transferred to the custody of the Attorney
General shall remain in the custody of the Attorney General under the same
conditions and for the same period of time as an offender who had been committed
to the custody of the Attorney General by a court of the Federated States of
Micronesia for the period of time imposed by the sentencing
court.
(2) The transferred offender
shall be entitled to all credits toward the service of the sentence which had
been given by the transferring country for time served as of the time of the
transfer.
(3) Any sentence for an
offense against the Federated States of Micronesia, imposed while the
transferred offender is serving the sentence of imprisonment imposed in a
foreign country, shall be aggregated with the foreign sentence, in the same
manner as if the foreign sentence was one imposed by a Federated States of
Micronesia court for an offense against the Federated States of
Micronesia.
Source: PL 5-22 § 17.
§
1507. Transfer of offenders on
parole.
Upon the receipt of an
offender who is on parole from the authorities of a foreign country, the
Attorney General shall assign the offender to a justice ombudsman of the
appropriate Federated States of Micronesia court for supervision.
Source: PL 5-22 § 18.
§
1508. Verification of consent of offender to transfer from the Federated States
of Micronesia.
(1) Prior to the
transfer of an offender from the Federated States of Micronesia, the fact that
the offender consents to such transfer and that such consent is voluntary and
with full knowledge of the consequences thereof shall be verified by a Federated
States of Micronesia justice or a judge authorized to do so by a Federated
States of Micronesia court.
(2) The
verifying officer shall inquire of the offender whether he understands and
agrees that the transfer will be subject to the following
conditions:
(a) Only the appropriate courts in the Federated States of Micronesia may modify or set aside the conviction or sentence, and any proceedings seeking such action may only be brought in such courts;
(b) The sentence shall be carried out according to the laws of the country to which he is to be transferred and that those laws are subject to change;
(c) If a court in the country to which he is transferred should determine upon a proceeding initiated by him or on his behalf that his transfer was not accomplished in accordance with the international agreement or laws of that country, he may be returned to the Federated States of Micronesia for the purpose of completing the sentence if the Federated States of Micronesia requests his return; and
(d) His consent to transfer, once verified by the verifying officer, is irrevocable.
(3)
The verifying officer, before determining that an offender’s consent is
voluntary and given with full knowledge of the consequences, shall advise the
offender of his right to consult with counsel as provided by this Chapter. If
the offender wishes to consult with counsel before giving his consent, he shall
be advised that the proceedings will be continued until he has had an
opportunity to consult with
counsel.
(4) The verifying officer
shall make the necessary inquiries to determine that the offender’s
consent is voluntary and not the result of any promises, threats, or other
improper inducements, and that the offender accepts the transfer subject to the
conditions set forth in Subsection (2) of this Section. The consent and
acceptance shall be on an appropriate form prescribed by the Attorney
General.
(5) The proceedings shall
be taken down by a reporter or recorded by suitable recording equipment. The
Attorney General shall maintain custody of the records.
Source: PL 5-22 § 19.
§
1509. Verification of consent of offender to transfer to the Federated States of
Micronesia.
(1) Prior to the
transfer of an offender to the Federated States of Micronesia, the fact that the
offender consents to such transfer and that such consent is voluntary and with
full knowledge of the consequences thereof shall be verified in the country in
which the sentence was imposed by a Federated States of Micronesia justice, a
judge authorized to do so by a Federated States of Micronesia court, or a person
specifically designated by a Federated States of Micronesia justice. The
designation of a citizen who is an employee or officer of a department or agency
of the Federated States of Micronesia shall be with the approval of the head of
that department or agency.
(2) The
verifying officer shall inquire of the offender whether he understands and
agrees that the transfer will be subject to the following
conditions:
(a) Only the country in which he was convicted and sentenced can modify or set aside the conviction or sentence, and any proceedings seeking such action may only be brought in that country;
(b) The sentence shall be carried out according to the laws of the Federated States of Micronesia and that those laws are subject to change;
(c) If a Federated States of Micronesia court should determine upon a proceeding initiated by him or on his behalf that his transfer was not accomplished in accordance with the international agreement or laws of the Federated States of Micronesia, he may be returned to the country which imposed the sentence for the purpose of completing the sentence if that country requests his return; and
(d) His consent to transfer, once verified by the verifying officer, is irrevocable.
(3)
The verifying officer, before determining that an offender’s consent is
voluntary and given with full knowledge of the consequences, shall advise the
offender of his right to consult with counsel as provided by this Chapter. If
the offender wishes to consult with counsel before giving his consent, he shall
be advised that the proceedings will be continued until he has had an
opportunity to consult with
counsel.
(4) The verifying officer
shall make the necessary inquiries to determine that the offender’s
consent is voluntary and not the result of any promises, threats, or other
improper inducements, and that the offender accepts the transfer subject to the
conditions set forth in Subsection (2) of this Section. The consent and
acceptance shall be on an appropriate form prescribed by the Attorney
General.
(5) The proceedings shall
be taken down by a reporter or recorded by suitable recording equipment. The
Attorney General shall maintain custody of the records.
Source: PL 5-22 § 20.
§
1510. Right to counsel; Appointment of
counsel.
In proceedings to verify
consent of an offender for transfer, the offender shall have the right to advice
of counsel. If the offender is financially unable to obtain
counsel:
(1) Counsel for proceedings conducted under Section 1508 of this Title shall be provided in the same manner as provided to any person accused of any offense; and
(2) Counsel for proceedings conducted under Section 1509 of this Title shall be appointed by the verifying officer pursuant to such rules as may be prescribed by the Chief Justice of the Supreme Court of the Federated States of Micronesia. The Attorney General shall make payments of fees and expenses of the appointed counsel, in amounts approved by the verifying officer, which shall not exceed the amounts authorized under the rules promulgated by the Chief Justice. Payment in excess of the maximum amount authorized may be made for extended or complex representation whenever the verifying officer certifies that the amount of the excess payment is necessary to provide fair compensation, and the payment is approved by the Chief Justice of the Supreme Court of the Federated States of Micronesia. If counsel from other agencies in any branch of the Government are appointed, the Attorney General shall make advance payments of travel and transportation expenses to appointed counsel or reimburse the employing agency for travel and transportation expenses.
Source: PL 5-22 § 21.
§
1511. Transfer of juveniles.
An
offender transferred to the Federated States of Micronesia because of an act
which would have been an act of juvenile delinquency had it been committed in
the Federated States of Micronesia or any State thereof shall be subject to the
provisions of this Chapter except as otherwise provided in the relevant
international agreement or in an agreement between the Attorney General and the
authority of the foreign country concluded pursuant to an international
agreement.
Source: PL 5-22 § 22.
§
1512. Prosecution barred by foreign
conviction.
An offender transferred
to the Federated States of Micronesia shall not be detained, prosecuted, tried,
or sentenced by the Federated States of Micronesia, or any State thereof for any
offense the prosecution of which would have been barred if the sentence upon
which the transfer was based had been by a court of the jurisdiction seeking to
prosecute the transferred offender, or if prosecution would have been barred by
the laws of the jurisdiction seeking to prosecute the transferred offender if
the sentence on which the transfer was based had been issued by a Federated
States of Micronesia court or by a court of a State of the Federated States of
Micronesia.
Source: PL 5-22 § 23.
§
1513. Loss of rights;
Disqualification.
An offender
transferred to the Federated States of Micronesia to serve a sentence imposed by
a foreign court shall not incur any loss of civil, political, or civic rights
nor incur any disqualification other than those which under the laws of the
Federated States of Micronesia or of the State in which the issue arises would
result from the fact of the conviction in the foreign country.
Source: PL 5-22 § 24.
§
1514. Status of alien offender transferred to a foreign
country.
(1) An alien who is the
subject of an order of deportation from the Federated States of Micronesia
pursuant to Chapter 1 of Title 50 of the Code of the Federated States of
Micronesia, who is transferred to a foreign country pursuant to this Chapter
shall be deemed for all purposes to have been deported from this
country.
(2) An alien who is the
subject of an order of exclusion and deportation from the Federated States of
Micronesia pursuant to Chapter 1 of Title 50 of the Code of the Federated States
of Micronesia, who is transferred to a foreign country pursuant to this Chapter
shall be deemed for all purposes to have been excluded from admission and
deported from the Federated States of Micronesia.
Source: PL 5-22 § 25.
§
1515. Return of transferred
offenders.
(1) Upon a final
decision by a Federated States of Micronesia court that the transfer of the
offender to the Federated States of Micronesia was not in accordance with an
international agreement or the laws of the Federated States of Micronesia and
ordering the offender released from serving the sentence in the Federated States
of Micronesia the offender may be returned to the country from which he was
transferred to complete the sentence if the country in which the sentence was
imposed requests his return. The Attorney General shall notify the appropriate
authority of the country which imposed the sentence within 10 days of a final
decision of a court of the Federated States of Micronesia ordering the offender
released. The notification shall specify the time within which the sentencing
country must request the return of the offender which shall be no longer than 30
days.
(2) Upon receiving a request
from the sentencing country that the offender ordered released be returned for
the completion of his sentence, the Attorney General may file a complaint for
the return of the offender with any Federated States of Micronesia justice or
any judge authorized by a Federated States of Micronesia court, within whose
jurisdiction the offender is found. The complaint shall be upon oath and
supported by affidavits establishing that the offender was convicted and
sentenced by the courts of the country to which his return is requested; the
offender was transferred to the Federated States of Micronesia for the execution
of his sentence; the offender was ordered released by a court of the Federated
States of Micronesia before he had completed his sentence because the transfer
of the offender was not in accordance with the international agreement or the
laws of the Federated States of Micronesia; and that the sentencing country has
requested that he be returned for the completion of the sentence. There shall be
attached to the complaint a copy of the sentence of the sentencing court and of
the decision of the court which ordered the offender
released.
(3) A summons or a
warrant shall be issued by the justice or judge ordering the offender to appear
or to be brought before the issuing authority. If the justice or judge finds
that the person before him is the offender described in the complaint and that
the facts alleged in the complaint are true, he shall issue a warrant for
commitment of the offender to the custody of the Attorney General until
surrender shall be made. The findings and a copy of all the testimony taken
before him and of all documents introduced before him shall be transmitted to
the Secretary of External Affairs, that a return warrant may issue upon the
requisition of the proper authorities of the sentencing country, for the
surrender of the offender.
(4) The
complaint referred to in Subsection (2) of this Section must be filed within 60
days from the date on which the decision ordering the release of the offender
becomes final.
(5) An offender
returned under this Section shall be subject to the jurisdiction of the country
to which he is returned for all
purposes.
(6) The return of an
offender shall be conditioned upon the offender being given credit toward
service of the sentence for the time spent in the custody of or under the
supervision of the Federated States of
Micronesia.
(7) Sections 1403
through 1407 and Section 1410 of Chapter 14 of this Title shall be applicable to
the return of an offender under this Section. However, an offender returned
under this Section shall not be deemed to have been extradited for any
purpose.
(8) An offender whose
return is sought pursuant to this Section may be admitted to bail or be released
on his own recognizance at any stage of the proceedings.
Source: PL 5-22 § 26.
§
1516. Execution of sentences imposing an obligation to make restitution or
reparations.
If in a sentence
issued in a penal proceeding of a transferring country an offender transferred
to the Federated States of Micronesia has been ordered to pay a sum of money to
the victim of the offense for damage caused by the offense, that penalty or
award of damages may be enforced as though it were a civil judgment rendered by
a Federated States of Micronesia court. Proceedings to collect the moneys
ordered to be paid may be instituted by the Attorney General in the appropriate
Federated States of Micronesia court. Moneys recovered pursuant to such
proceedings shall be transmitted through diplomatic channels to the treaty
authority of the transferring country for distribution to the
victim.
Source: PL 5-22 § 27.
_________
CHAPTER 16
Interstate Extradition
Sections:
§
1601. Interstate extradition - Obligations of
States.
§ 1602.
Requirement for
warrant.
§
1603. Contents for
warrant.
§
1604. Transmittal of
warrant.
§
1605. Ratification of
warrant.
§
1606. Required findings by
court.
§ 1607.
Time
limitations.
§
1608. Expenses.
_______
§
1601. Interstate extradition - Obligations of
States.
(1) A person charged with a
public offense in any State of the Federated States of Micronesia, who flees to
any other State of the Federated States of Micronesia, shall, upon demand from
the executive of the charging State, be apprehended, removed and delivered from
the asylum State to the requesting State, in accordance with the provisions of
this chapter.
(2) The asylum State
shall, within a reasonable time after apprehension of a person in accordance
with this section, make reasonable efforts to provide notice of the apprehension
to one of the following people, in the following order of
priority:
(a) The apprehended person’s spouse, if any;
(b) The apprehended person’s most competent child, if any;
(c) The head of the family with which the apprehended person has been staying in the asylum State;
(3)
Before a person who has been apprehended in accordance with subsection (1) of
this section may be removed to the requesting State, the asylum State must make
reasonable efforts to allow an opportunity for the person who is apprehended to
communicate for a reasonable length of time with the person who has been
notified in accordance with subsection (2) of this
section.
(4) A person who has been
apprehended in accordance with subsection (1) of this section may choose to
waive his rights to notice and/or visitation under subsections (2) and (3) of
this section. Any such waiver must be in writing, and must be signed by the
apprehended person. If the apprehended person signs a waiver of his right to
notice under subsection (2) of this section, no such notice shall be made. If
the apprehended person signs a waiver of his right to visitation under
subsection (3) of this section, no such visitation shall occur.
Source: PL 10-30 § 3.
§
1602. Requirement for warrant.
No
person shall be extradited from one State to another within the Federated States
of Micronesia unless a warrant of arrest is first issued by a court of competent
jurisdiction in the requesting State.
Source: PL 10-30 § 4.
§
1603. Contents of warrant.
The
warrant of arrest shall set forth with specificity the person to be arrested, a
physical description of the person, the offense for which extradition is sought,
and the accused person’s rights under subsections (2), (3), and (4) of
section 1601 of this title. The offense for which extradition is sought need not
be an offense in the asylum State, so long as it is an offense in the requesting
State.
Source: PL 10-30 § 5.
§
1604. Transmittal of warrant.
After
a warrant of arrest has been issued, the executive of the requesting State shall
transmit a copy of the warrant of arrest, along with his request for execution
thereof, to the executive of the asylum State.
Source: PL 10-30 § 6.
§
1605. Ratification of warrant.
Upon
receipt, the executive of the asylum State shall ratify the warrant and request,
and deliver the same to local law enforcement agencies for
execution.
Source: PL 10-30 § 7.
§
1606. Required findings by
court.
After arrest of the
fugitive, he shall be brought before a court of competent jurisdiction in the
asylum State. The court shall determine the validity of the warrant and request
and the identity of the fugitive, and may detain the fugitive until his removal
or may release him on such conditions as will insure his ready presence for
removal, and shall issue findings of fact as to the validity of the warrant and
request and the identity of the fugitive.
Source: PL 10-30 § 8.
§
1607. Time limitations.
A fugitive
detained shall be removed to the requesting State within 30 days of the issuance
of findings by a court of the asylum State, and if not detained, the fugitive
shall be removed to the requesting State within 60 days of the issuance of
findings by a court of the asylum State. If not removed within these time
limits, the case shall be dismissed without prejudice.
Source: PL 10-30 § 9.
§
1608. Expenses.
All expenses of the
extradition, including return to the asylum State upon completion of proceedings
in the requesting State, shall be borne by the requesting State.
Source: PL 10-30 § 10.
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