The International Covenant on Civil and Political Rights 1966 (ICCPR) is one of the key international documents on miscarriage of justice. ICCPR discusses the obligation of State in cases of miscarriage of justice resulting in wrongful conviction. The ICCPR recognizes the inherent dignity of each individual and undertakes to promote conditions within states to allow the enjoyment of civil and political rights. Countries that have ratified the Covenant are obligated “to protect and preserve basic human rights… [and] “compeled to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy.”
There are currently 74 signatories and 168 parties to the ICCPR.
The rights protected under the ICCPR include:
Article 6 – Right to life.
Article 7 – Freedom from torture.
Article 8 – Right to not be enslaved.
Article 9 – Right to liberty and security of the person.
Article 10 – Rights of detainees.
Article 11 – Right to not be imprisoned merely on the ground of inability to fulfil a contractual obligation.
Article 12 – Freedom of movement and choice of residence for lawful residents.
Article 13 – Rights of aliens.
Article 14 – Equality before the courts and tribunals. Right to a fair trial.
Article 15 – No one can be guilty of an act of a criminal offence which did not constitute a criminal offence.
Article 16 – Right to recognition as a person before the law.
Article 17 – Freedom from arbitrary or unlawful interference.
Article 18 – Right to freedom of thought, conscience and religion.
Article 19 – Right to hold opinions without interference.
Article 20 – Propaganda for war shall be prohibited by law.
Article 21 – Right of peaceful assembly.
Article 22 – Right to freedom of association with others.
Article 23 – Right to marry.
Article 24 – Children’s rights
Article 25 – Right to political participation.
Article 26 – Equality before the law.
Article 27 – Minority protection.
Article 14(6) of ICCPR provides for compensation for person wrongfully convicted. Article 9(5) also provides right to compensation for any person who is a victim of unlawful detention or arrest.
The United Nations Human Rights Committee discussed Article 14 of the ICCPR in detail in its General Comment No. 32. In explaining the obligations of the State in “Cases of Miscarriage of Justice”, it required state parties should enact legislation for ensuring that compensation is paid within reasonable period of time.
A total of 168 State parties, including India, have ratified the ICCPR. However, not all countries have converted their commitment into law.
These States have developed legal frameworks for remedying such miscarriage of justice by compensating the victims of wrongful convictions, providing them pecuniary and/or non pecuniary assistance.
A. United Kingdom
- Criminal Justice Act 1988
In conformity with its international obligation under ICCPR, the United Kingdom has incorporated the aforesaid provision of Article 14(6) into its domestic legislation, the Criminal Justice Act 1988, under Part XI subtitled “Miscarriages of Justice”, sections 133, 133A, 133B.
The said section lay down the legislative framework under which the Secretary of State, subject to specified conditions, and upon receipt of applications, shall pay compensation to a person who has suffered punishment as a result of a wrongful conviction. It also provides the factors to be considered while assessing the amount of compensation i.e. harm to reputation or similar damage, the seriousness of the offence, severity of the punishment, the conduct of the investigation and prosecution of the offence
In 2011, R (on the application of Adams) v. Secretary of State for Justice supreme court of UK ruled that the requirement of conclusive innocence was too narrow and held that even those who cannot prove their innocence beyond reasonable doubt were entitled to compensation. This finding was based on principle that “if it can be conclusively shown that the state was not entitled to punish a person, then he should be entitled to compensation for having been punished. He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now.”
- Criminal Cases Review Commission (CCRC)
The UK also has a Review Commission dedicated to the task of ascertaining whether an accused has suffered miscarriage of justice.
- UK Police Act, 1996
Section 88 of the UK Police Act, 1996 that deals with the “Liability for wrongful acts of constables”. It makes the chief officer of police liable in respect of any
Unlawful conduct of constables under his direction and control in the performance of their functions. It further provides for payment of any damages or settlement amount, for such cases, out of the police fund
B. Germany
In Germany, the issue of miscarriage of justice resulting in wrongful convictions is primarily dealt with by assigning the liability to the State (“official liability‟), and by providing compensation to those wrongfully convicted.
- Grundgesetz – The Constitution
Article 34 of The Constitution of Germany [Grundgesetz (GG)], 1949 ( titled “Liability for violation of official duty”) states that If any person, in the exercise of a public office entrusted to him, violates his official duty to a third party, liability shall rest principally with the state or public body that employs him. In the event of intentional wrongdoing or gross negligence, the right of recourse against the individual officer shall be preserved.
- Law on Compensation for Criminal Prosecution Proceedings, 1971
According to the Article 1 of above-mentioned Act, whoever has suffered damage as a result of a criminal conviction which is later quashed or lessened (the “applicant”) shall be compensated by the State.
Further Article 2 provides compensation for a person who has suffered damage as a result of a remand order or certain other types of detention, provided he or she is acquitted, or the prosecution is suspended or abandoned.
- Law on Compensation for Law Enforcement Measures
There is also the “Strafverfolgungsentschädigungsgesetz‟ (StrEG), translated as “Law on Compensation for Law Enforcement Measures‟ in force since 1971, dealing with claims for compensation mainly arising out of mitigation or elimination of final conviction, unlawful pre-trial detention and other unlawful detention, unlawful search and seizure.
Section 7 StrEG provides for a fixed sum per day for the non-pecuniary damage as compensation i.e. €25 per day (wrongfully spent in custody) in addition to any compensation for financial loss. Factors comprising financial loss include loss of earnings often due to a loss of the place of employment, losses in the pension insurance policy (usually due or in direct consequence to loss of earnings), cost of the lawyer, cost arising from the search of a place to live and from damage to health.
- The German Civil Code
With respect to official breach of duty pertaining to administrative acts, the „official liability‟ is the central standard of the German state liability law.
Article 34 of the German Civil Code (in effect since 1900) called Bürgerliches
Gesetzbuch (BGB) states that
If an official, intentionally or negligently, violates his official duty towards a third party, he shall reimburse the third party for the resulting damage. If the official is only liable for negligence, he may only be charged if the injured person cannot obtain compensation in any other way.
If an official breaches his official duties in a judgment in a case, he is only responsible for the resulting damage if the breach of duty results in a criminal offense. In a wrongful refusal or delay in the exercise of their office, this provision does not apply.
The duty of compensation shall not arise if the injured party intentionally or negligently failed to avert the damage by using an appeal.
C. United States of America
In the United States of America (US), matters of miscarriage of justice resulting in wrongful conviction are primarily addressed by compensating those who have been wrongfully convicted in accordance with the federal or the respective state law, as may be applicable.
Some states has also provides a tabular compensation formula, laying down maximum amount payable depending on the period of incarceration
In addition to the above, most of the States in the US also provide for non-monetary compensation for assisting these victims in rehabilitation, and reintegration into society; it includes transitional services including housing assistance, job training, assistance in terms of job search and placement services, referral to employers with job openings, and physical and mental health services, counselling services; and expunging of the record of conviction – helpful in allowing the claimants to reintegrate into society.
D. Canada
Canada ratified the ICCPR in 1976; though no legislation has been enacted to give effect to the Covenant, the principles expressed in it appear to have informed a joint set of guidelines relating to compensation for the wrongfully convicted, formulated by the Federal and Provincial Ministers of Justice in 1988.
E. New Zealand
In New Zealand, wrongful conviction and imprisonment is addressed via compensation granted ex-gratia by the State. These ex gratia payments are in accordance with the Ministry of Justice’s “Compensation for Wrongful Conviction and Imprisonment (May 2015)” (“Guidelines”). Under the Guidelines, a person is eligible for compensation if he is imprisoned following a wrongful conviction that is subsequently set aside; and is, at a minimum, innocent on the balance of probabilities. In addition to the foregoing, claimant must
- be alive at the time of application;
- have served all or part of and sentence of imprisonment;
- Have received a free pardon or have had their convictions quashed on appeal without order of retrial.
The Guidelines provide for three categories of compensation for successful claimants:
(i) Payments for non-pecuniary losses following conviction – based on a starting figure of $100,000 for each year in custody.
(ii) Payments for pecuniary losses following conviction.
(iii) A public apology or statement of innocence
F. Australia
In Australia, individuals wrongfully convicted and imprisoned do not have a common law or statutory right to compensation except for in the Australian Capital Territory (ACT). , However, a State or territory government may choose to make an ex gratia payment either on its own accord or as a result of a request by a party for such a payment.
Recommendations of the Indian Law Commission:
The law commission in its report suggest some recommendations to tackle miscarriage of justice in India. Some of the recommendations are as follows:
(i) Special Court: in each district for adjudicating upon the claims of compensation for wrongful prosecution. The choice jurisdiction should be made by the applicant, as follows:
- Either the Special Court having jurisdiction over the area in which the wrongful prosecution occurred or,
- The Special Court within the local limits of whose jurisdiction the applicant resides
(ii) Cause of Action: the cause of action for filing a claim for compensation will be “wrongful prosecution‟, which ended with an order or judgment in favour of the accused which acquitted him.
The word “wrongful prosecution” includes both malicious prosecution and prosecution in good faith.
(iii) Who can apply: The claim for compensation can be brought by the accused person so injured; or by any agent duly authorized by the said accused person; or where the accused person died after the termination of the wrongful prosecution, by all or any of the heirs or legal representatives of the deceased.
(iv) Compensation: under the framework provided in the report compensation will include both pecuniary and non-pecuniary assistance to effectuate the rehabilitation of these victims of wrongful prosecution into society. While pecuniary assistance will be in terms of monetary award as may be determined by the Special Court; non-pecuniary assistance will be awarded in the form of services such as counselling, mental health services, vocational/employment skills development, and such other similar services.
A. Lessons so far
Mental and physical trauma to be included: In most of the countries the monetary compensation is provided to the victims of miscarriage of justice, but the question is calculations of monetary value needs to be settled keeping in mind the mental and physical trauma which a victim suffers.
Eg. of Impact of Burden of Proof on Claimant: Under German laws, the burden of proof in the claims lie on the claimant, which has been noted to make it difficult in reality for the claimant to obtain any compensations for financial loss.
Inviting confidence of person who has suffered: In case of compensation for miscarriage of justice, provision of application before an authority and review by review committee make the process more complicated as delay in hearing and pendency in these tribunals made condition more critical. Also for a person who have suffered lot due to miscarriage would not indulge him again in the system of hearing and dates.
In the Indian context establishment of tribunals for compensation is good only if there is speedy disposal of the cases
B. Status of law on compensation for miscarriage
Till today in India, there is no specific law on the miscarriage of justice. So far there is no implementation of the recommendations made to the law commission of India 277th report.
C. Index on the performance of the criminal systems
No index deals exclusively with the criminal system but the “Rule of Law Index” issued by Released by the World Justice Project- an independent organization. The World Justice Project Rule of Law Index measures how the rule of law is experienced and perceived by the general public in 126 countries and jurisdictions worldwide based on more than 120,000 household and 3,800 expert surveys.
The index covers 128 countries. It measures countries’ rule of law performance across eight factors:
(1) Constraints on Government Powers,
(2) Absence of Corruption,
(3) Open Government,
(4) Fundamental Rights,
(5) Order and Security,
(6) Regulatory Enforcement,
(7) Civil Justice, and
(8) Criminal Justice
India has ranked 79 out of 139 countries and jurisdictions in the World Justice Project’s (WJP) Rule of Law Index 2021. India’s overall rule of law score decreased 1.9% in this year’s Index. At 79th place out of 139 countries and jurisdictions worldwide, India fell three positions in global rank. India’s score places it at 3 out of 6 countries in the South Asia region. Regionally, South Asia’s top performer in the Index is Nepal (70th out of 139 countries globally), followed by Sri Lanka and India.
In criminal law, Blackstone’s ratio is the idea that:
It is better that ten guilty persons escape than that one innocent suffer.
it awaits implementation of the required laws to prevent miscarriage of justice in India in line with covenant.
This article is based on Report 277 of Law Commission.
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