[ADVISORY QUESTIONS] How Criminal Law is applied to Residents versus how it's applied to citizens

The Conclave
1

Greetings, honorable Arbiters. I post this as a private citizen, forgoing my role of Viceroy. In the event that an informal verdict needs to be made, Designee Pakitsk is capable of taking care of it. In other words, I’m recusing from this as I’m a bit confused and would like legal opinion. (NOTE: I forgot to mention, but obviously all the quotes referencing Articles and Sections are from the Concordat, everything with no Articles is from the Dictum)

I’ll post the questions at the end.

So first of all, I want to address something that’s bugging me: why can the government ban residents, despite them not committing any legal crime (neither indictable nor summary), while it is assumed that citizens cannot be banned for any reason without a legal trial (even though from what I understand, trials only apply to summary and indictable offenses)?

First, I bring you to Article A, Section 3, which states:

— Begin quote from ____

Section 3) The Delegate shall eject and/or banish Nations from the Region who have committed a summary offense or have been sentenced as such for committing an indictable offense, by the Conclave, for the prescribed period of time.

— End quote

Here, we see that the Delegate will ban nations from the Region, aka residents in TEP, who have committed a summary or indictable offense.

Cool. Now, I drag your attention to Article C, Sections 1 and Section 6, and Article F, Sections 1 and 2.

— Begin quote from ____

Section 1) This Concordat does hereby invest judicial power in the Conclave, which shall be the interpreter of this Concordat and the judge and jury of indicted Citizens.

— End quote

— Begin quote from ____

Section 6) The Conclave may rule on the actions of any Citizen to be in violation of this Concordat or of the indicted offences as prescribed by the laws of the Region and sentence those found guilty pursuant to statutory limits. Trials in the Conclave shall be in open session.

— End quote

— Begin quote from ____

Section 1) Each Citizen shall have the right to a swift and impartial trial by the Conclave if indictment is made against them, as limited by the duty to avoid incitement of indictment.

— End quote

— Begin quote from ____

Section 2) Each Citizen shall have a legal right not to be tried twice for the same offence, a legal right against forced self-incrimination, and the right of representation by adequate counsel to enforce said legal rights. These rights are limited by the duty to not obstruct justice and to comply with evidentiary requests by Conclave.

— End quote

Here, we see that an indictable offense is reserved only for citizens, since the Conclave only has jurisdiction over “indicted citizens”, the Conclave can only try citizens for either a) breaking the Concordat or b) indicted offenses, and we also see that Article F gives Citizens the right to trial and rights associated with a trial.

Now I bring you into what indicted means. According to the Merriam-Webster dictionary, indictment has two meanings: “to charge with a crime by the finding or presentment of a jury (such as a grand jury) in due form of law” OR “to charge with a fault or offense”.

Based upon the dictionary and TEP’s own meaning of an indictable offense:

— Begin quote from ____

…4.6- Indictable offences are those which may not be enforced by The East Pacific until it is proven before Conclave that the accused citizen is guilty.
…4.6.1- The sentences for these offences should not exceed that which is mandated by law.

— End quote

We can assume that indictable offenses are those where someone is “formally” charged with a crime. For citizens, this “charge” has to go through to the Conclave. But, because residents do not have, or are explicitly left out, of having the right to trial, they can be banned without a trial/due process, since their indictment doesn’t have to be proven in court.

Lemme bring back Article F, Section 1:

— Begin quote from ____

Section 1) Each Citizen shall have the right to a swift and impartial trial by the Conclave if indictment is made against them, as limited by the duty to avoid incitement of indictment.

— End quote

In other words, if someone is formally charged with a crime, the Conclave will rush in to make sure that the indictment is actually justified. And if it’s justified, then the citizen who is indicted serves out a set and fair punishment. However, because an indicted resident does not have the right to trial, the resident can be banned. (This also raises an interesting question I’ll bring about at the end.)

SO, what we got so far is that both citizens and residents can be banned for summary offenses (but only citizens can have an appeal trial, as per the Dictum), and citizens and residents can both be indicted, and subsequently banned, for an indictable offense (though said ban cannot occur without a trial for citizens, but it can occur without a trial for residents).

As a reminder, this is what the Dictum says about summary offenses:

— Begin quote from ____

…4.5- Summary offences are those which the Delegate, their appointees, or service administrators are empowered and expected to enforce.
…4.5.1- The sentences for these offences should not exceed that which is mandated by the law,
…4.5.2- Citizens of The East Pacific may choose to appeal this decision to Conclave, if applicable.

— End quote

From this, we can assume that residents AND citizens can be banned for a summary offense (following Article A, Section 3 of the Concordat), but only citizens have the right to appeal through trial (following the Dictum).

But back on topic, my penultimate question is this: why is it that residents can be banned outside of the law, but citizens cannot?

In our law, a resident simply exists, or does something that isn’t an summary offense, indictable offense, NOR a security threat (as following Section 4.8 of the Dictum:

— Begin quote from ____

…4.8- The East Pacific shall assert its right as a Region to deny entry or residence to any nation it has deemed a significant risk to the Region, including but not limited to nations which have been convicted of Treason or High Treason.
…4.8.1- This shall not impede the right of Citizens to seek appeal before Conclave.

— End quote

Yet, they can be legally banned by the Delegate, with the justification that “there is no law surrounding them”, or that “no law legislates their banning”.

But I can argue the same exact thing for citizens. In theory, the Delegate should be able to ban/eject citizens AND residents for any offense not described within law. There is absolutely nowhere in our law that states that residents can be banned for reasons not considered a criminal offense by law, nor does such a statement exist for citizens.

Infact, I would argue the opposite. Not that the Delegate can ban both residents and citizens for things they’ve done that aren’t seen criminal by law. But rather, the Delegate cannot ban citizens nor residents who have not broken an offense in legislation. Of course the Delegate can ban residents for committing an indictable offence: resident’s don’t have the right to have their indictment decided to be true or false by the court.

What I am saying is, is that residents can only be banned for offenses within TEP law, unlike what’s been the interpretation for many years. And I base this argument on the Dictum:

— Begin quote from ____

…4.4- Criminal offences shall be clearly typified as either a ‘summary’ or ‘indictable’ offence, and applied as such.

— End quote

Criminal offenses, aka what constitutes as needing punishment or deterrent (in other words, bans and ejections), are either classified as summary or indictable offense (and applied as following their definitions). Thusly, there’s absolutely nothing here supporting extrajudicial banning of residents, but rather this clause can be seen as supporting the argument that the government can only ban residents for indictable and summary offenses, just like citizens.

(However, again, residents don’t get a trial for indictable offenses, and they can’t appeal summary offenses like citizens.)

I specify criminal offenses, because to me, that can be translated to “reasons for banning someone”. In other words, to put it into my interpretation:

— Begin quote from ____

…4.4- Actions that necessitate banishment or ejection, aka criminal offenses, shall be clearly typified as either a ‘summary’ or ‘indictable’ offence, and applied as such.

— End quote

We also see that the Dictum clearly states that criminal offenses need to be clearly typified, or in other words, typed up within law. Which further supports my point.

Now, I leave the Conclave the following questions.

  1. Why can the Delegate ban residents for reasons not constituting lawful offenses (meaning, things that aren’t indictable offenses, nor summary, nor being a security threat), while citizens cannot be banned by the Delegate for reasons not constituting lawful offenses?

  2. What does the word “Indictment”, and its variations such as “Indicted” mean within TEP law?

  3. Do you believe that the legal opinion stating “Residents cannot be banned for reasons not constituting criminal offenses as defined by the Dictum, nor for reasons that are not considered to be breaking the Concordat” as a legal and valid opinion, and why or why not?

  4. Given that residents can be indicted, and punished without trial, do the maximum sentencing of indictable offenses, (such as five year ban max for sedition), also apply to resident bans made for a reason that constitutes legal indictment? Or, are all resident bans enacted due to indictment indefinite?

I also ask that the Conclave consider my argument, and ask questions on it so that I may provide clarification as needed.

2

I want to preface this by saying that most everyone who I have discussed this topic with knows of my hostility to extending the protections of the Concordat to those who have not ratified it, under the same principle that a treaty cannot reasonably have any effect on non-signatories. However, upon review of various documents, I have come to the conclusion that:

  1. The Delegate cannot, legally speaking, banish either Citizens or Residents without a loose interpretation of the Concordat, wherein anything unmentioned by the Concordat is permissible;

  2. The following subsection of the Dictum de hoc Malefactum indicates that the important portion of criminal justice is the sentencing, rather than the actual punishment:

— Begin quote from ____

…4.7- The East Pacific believes the fundamental purpose of sentencing is to contribute to a respect for the law to maintain a just and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to provide reparations for harm done to victims or to the community; and
(e) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community

— End quote

As a result, it is imperative that criminal offenses be punished and formally sentenced. This, presumably, includes residents. It also opens up a new question: what exactly is “sentencing,” and who exactly can sentence citizens and residents?

  1. The Concordat mentions sentencing once, in Article C Section 6:

— Begin quote from ____

The Conclave may rule on the actions of any Citizen to be in violation of this Concordat or of the indicted offences as prescribed by the laws of the Region and sentence those found guilty pursuant to statutory limits. Trials in the Conclave shall be in open session.

— End quote

Here, we have two options. Firstly, we interpret the Concordat literally and strictly. Because non-Conclave ROs are not empowered specifically to sentence residents and citizens, they cannot apply “just sanctions” to them. In this case, as far as I can tell, Subsection 4.5 of the Dictum de hoc Malefactum becomes useless unless the Conclave has formally sentenced those guilty of summary offenses, which makes the distinction between Summary and Indictable offenses academic.

— Begin quote from ____

…4.5- Summary offences are those which the Delegate, their appointees, or service administrators are empowered and expected to enforce.

— End quote

Alternatively, we can interpret the Concordat loosely. Because nothing specifically prohibits non-Conclave ROs from sentencing, they can apply “just sanctions” without issue. Although this would be the simplest solution, a loose interpretation of the Concordat may have unforeseen implications that are detrimental to the East Pacific, and I strongly recommend against such a course.

  1. Therefore, I have come to the conclusion that neither residents nor citizens can be banned without formal sentencing from the Conclave, and that to do so is against the Dictum and Concordat.

[hr]
VICEROY NOTE: Upon my offering (and Paki’s acceptance of the offer), I have taken the liberty of using discretionary powers as Viceroy to fix the format of this post so that the quotes actually work. Link to the original code (and images) for the original opinion left below:
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I want to preface this by saying that most everyone who I have discussed this topic with knows of my hostility to extending the protections of the Concordat to those who have not ratified it, under the same principle that a treaty cannot reasonably have any effect on non-signatories. However, upon review of various documents, I have come to the conclusion that:

  1. The Delegate cannot, legally speaking, banish either Citizens or Residents without a loose interpretation of the Concordat, wherein anything unmentioned by the Concordat is permissible;

  2. The following subsection of the Dictum de hoc Malefactum indicates that the important portion of criminal justice is the sentencing, rather than the actual punishment:

…4.7- The East Pacific believes the fundamental purpose of sentencing is to contribute to a respect for the law to maintain a just and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct;(b) to deter the offender and other persons from committing offences;(c) to separate offenders from society, where necessary;(d) to provide reparations for harm done to victims or to the community; and(e) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community As a result, it is imperative that criminal offenses be punished and formally sentenced. This, presumably, includes residents. It also opens up a new question: what exactly is “sentencing,” and who exactly can sentence citizens and residents? 1. The Concordat mentions sentencing once, in Article C Section 6:

Section 6) The Conclave may rule on the actions of any Citizen to be in violation of this Concordat or of the indicted offences as prescribed by the laws of the Region and sentence those found guilty pursuant to statutory limits. Trials in the Conclave shall be in open session. Here, we have two options. Firstly, we interpret the Concordat literally and strictly. Because non-Conclave ROs are not empowered specifically to sentence residents and citizens, they cannot apply “just sanctions” to them. In this case, as far as I can tell, Subsection 4.5 of the Dictum de hoc Malefactum becomes useless unless the Conclave has formally sentenced those guilty of summary offenses, which makes the distinction between Summary and Indictable offenses academic…4.5- Summary offences are those which the Delegate, their appointees, or service administrators are empowered and expected to enforce. Alternatively, we can interpret the Concordat loosely. Because nothing specifically prohibits non-Conclave ROs from sentencing, they can apply “just sanctions” without issue. Although this would be the simplest solution, a loose interpretation of the Concordat may have unforeseen implications that are detrimental to the East Pacific, and I strongly recommend against such a course. 1. Therefore, I have come to the conclusion that neither residents nor citizens can be banned without formal sentencing from the Conclave, and that to do so is against the Dictum and Concordat.

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3

That’s interesting. Looks like work for the Magisterium.

4

Actually, upon further review, the Concordat contains the following important lines:

— Begin quote from ____

Section 3) The Delegate shall eject and/or banish Nations from the Region who have committed a summary offense…

— End quote

— Begin quote from ____

Section 1) This Concordat does hereby invest judicial power in the Conclave, which shall be the interpreter of this Concordat and the judge and jury of indicted Citizens.

— End quote

Because the Concordat is higher than the Dictum, it is clear that a strict interpretation gives the Conclave jurisdiction only over indictable offenses, not summary ones, and that it gives the Delegacy (and, by extension, Executive ROs) the power to punish nations who have committed a summary offense. Sentencing is not mentioned with regard to summary offenses in the Concordat. Therefore, my statement that no ban is valid without sentencing appears to have been incorrect, and I now, albeit somewhat reluctantly, agree with Zukchiva’s assessment without much further amendment. Nations cannot, without adopting a loose interpretation of the Concordat, be banned unless they have committed a legal offense.

5

As any citizen might gather from the sheer length of Zukchiva’s question, and their confusion regarding this matter even while serving as Viceroy, the matter we currently consider is rather complicated. The question is borne of poor interaction between the Concordat and the Dictum, and the perhaps less than ideal choice of words, from a narrow perspective of easy interpretation. Zukchiva has no doubt organized the relevant pieces of law in a manner that helps their own thought process. However, it doesn’t really help mine. I will therefore be repeating a lot of the prelimiary explanation offered in the original question, in my own style and format.

EXAMINATION

As an establishing fact, we shall observe the following clauses:

— Begin quote from ____

Dictum 3.1.2: Criminal Act- “an act or an omission of an act which is in contravention of a justly applied criminal law”
Dictum 3.1.3: Criminal Law- “a law dutifully enacted to define an act -or an omission of an act- as against public interest and generally supplies a punishment for committing such an act”

— End quote

We may understand from this that criminal acts are any which contravene one or more laws of The East Pacific which carry a sentence for their violation.

We now progress further into the Dictum:

— Begin quote from ____

Dictum 4.4: Criminal offences shall be clearly typified as either a ‘summary’ or ‘indictable’ offence, and applied as such.
Dictum 4.5: Summary offences are those which the Delegate, their appointees, or service administrators are empowered and expected to enforce. 
Dictum 4.5.1: The sentences for these offences should not exceed that which is mandated by the law,
Dictum 4.5.2: Citizens of The East Pacific may choose to appeal this decision to Conclave, if applicable.

— End quote

“Criminal offenses” is different language from “criminal act”, which produces some minor stress on interpretation. Even so, we may reasonably surmise that “criminal offenses” fall under the broader term of “criminal act”. From this, we gather that any nation may commit a summary offense, and that while citizens may appeal action against summary offenses, residents may not. So far, this interacts smoothly with the Concordat, in which:

— Begin quote from ____

Concordat A.3: The Delegate shall eject and/or banish Nations from the Region who have committed a summary offense or have been sentenced as such for committing an indictable offense, by the Conclave, for the prescribed period of time.

— End quote

The government is therefore required to remove residents for committing summary offenses. This leaves the matter of removing residents for committing indictable offenses. The Concordat clearly also requires the government to remove nations who have been found guilty of an indictable offense and sentenced. However, it is known that only citizens have the right to trial, as explained later in the Concordat:

— Begin quote from ____

Concordat F.1: Each Citizen shall have the right to a swift and impartial trial by the Conclave if indictment is made against them, as limited by the duty to avoid incitement of indictment.

— End quote

In practice, this means residents’ cases are not brought to trial, and therefore the Conclave does not pass sentence on residents for indictable offenses. This means that, in practice, the Concordat does not require the government to remove residents for committing indictable offenses. The Concordat now thoroughly considered on the matter of removing residents, we may focus exclusively on the Dictum.

The Dictum defines “indictable offenses” as follows:

— Begin quote from ____

Dictum 4.6: Indictable offences are those which may not be enforced by The East Pacific until it is proven before Conclave that the accused citizen is guilty.

— End quote

This definition assumes that the indicted nation is a citizen and that it enjoys a right to trial before the Conclave. This produces complications for interpreting the law. Residents are not categorically citizens, and they do not enjoy a right to trial. It would seem necessary to interpret the current definition of “indictable offense” as precluding the sentencing of residents for committing indictable offenses.

Finally, the Dictum provides one last basis for the removal of residents, in this clause:

— Begin quote from ____

Dictum 4.8: The East Pacific shall assert its right as a Region to deny entry or residence to any nation it has deemed a significant risk to the Region, including but not limited to nations which have been convicted of Treason or High Treason. 
Dictum 4.8.1: This shall not impede the right of Citizens to seek appeal before Conclave.

— End quote

Again, citizens alone possess the right to justice before the Conclave. Here, the government may identify residents as “a significant risk to the Region”. The inclusion of those nations found guilty of treason and high treason as examples of significant risks is important. The government may presume that residents who were not convicted of treason or high treason, but are known to have engaged in behavior that matches the descriptions of those offenses, may also be considered “a significant risk to the Region.” This clause alone seems to allow the removal of residents for behavior that would be an indictable offense for a citizen.

FINDINGS

In summary, I find that the government either can or must remove residents found committing criminal acts that either 1) are summary offenses under the laws of The East Pacific or 2) pose “a significant risk” to The East Pacific. However, the government can neither indict and try residents for indictable offenses, nor treat actions resembling indictable offenses as summary offenses when residents perpetrate those actions. Given the language used in Concordat A.3 and Dictum 4.6, I believe the government is precluded from identifying residents as committing indictable offenses. Such behavior must meet the “significant risk” standard to be acted upon.

To address Zukchiva’s questions point-by-point,

— Begin quote from ____

  1. Why can the Delegate ban residents for reasons not constituting lawful offenses (meaning, things that aren’t indictable offenses, nor summary, nor being a security threat), while citizens cannot be banned by the Delegate for reasons not constituting lawful offenses?

— End quote

This fundamentally rests on whether to interpret the Concordat as representing the sum of the powers of the government, or as the only limitations on the powers of the government. In the former case, the government cannot remove residents except on one of the two bases that I established above. In the latter case, both residents and citizens may be removed for reasons other than violating the law. Concord Article F does not provide citizens any right not to be removed for reasons other than violations of the law, nor does it explicitly provide recourse for being removed for reasons other than violations of the law. For this reason, I am unwilling to accept the latter interpretation.

— Begin quote from ____

  1. What does the word “Indictment”, and its variations such as “Indicted” mean within TEP law?

— End quote

While the law does not define this term on its own, it can be understood from the use in “indictable offenses” to mean that an indictment is a charge against a citizen of violating a law for which violation is considered an indictable offense. Indictments are brought before the Conclave for judgement and sentencing. Only citizens can be indicted, and therefore only citizens can commit indictable offenses.

— Begin quote from ____

  1. Do you believe that the legal opinion stating “Residents cannot be banned for reasons not constituting criminal offenses as defined by the Dictum, nor for reasons that are not considered to be breaking the Concordat” as a legal and valid opinion, and why or why not?

— End quote

As I have explained in response to the first question, I believe this is not only a valid and legal opinion, but the only acceptable one, the alternative being the government’s authority (within the Concordat and Dictum) to remove citizens as well for reasons outside the scope of the laws of The East Pacific.

— Begin quote from ____

  1. Given that residents can be indicted, and punished without trial, do the maximum sentencing of indictable offenses, (such as five year ban max for sedition), also apply to resident bans made for a reason that constitutes legal indictment? Or, are all resident bans enacted due to indictment indefinite?

— End quote

I do not consider the government currently capable of indicting residents, as explained above. Removal under the standard of a resident presenting a “significant risk” has no guidelines for the period of removal, so I would consider the government capable of issuing indefinite bans in such cases.