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Report No. 277

Chapter- 3

International Perspective

A. The International Covenant on Civil and Political Rights

3.1 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. It requires the State to compensate the person who has suffered punishment on account of a wrongful conviction provided that the conviction was final, and was later reversed or pardoned on the ground of miscarriage of justice i.e. a new fact proving that the accused was factually innocent. Article 14(6) of ICCPR states:

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. (Emphasis Supplied) Article 9(5) states: Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

3.2 The United Nations Human Rights Committee23 discussed Article 14 of the ICCPR in detail in its General Comment No. 32 (2007). In explaining the obligations of the State in 'Cases of Miscarriage of Justice', it required: 52. It is necessary that States parties enact legislation ensuring that compensation as required by this provision can in fact be paid and that the payment is made within a reasonable period of time.

53. This guarantee does not apply if it is proved that the non-disclosure of such a material fact in good time is wholly or partly attributable to the accused; in such cases, the burden of proof rests on the State. Furthermore, no compensation is due if the conviction is set aside upon appeal, i.e. before the judgment becomes final,24 or by a pardon that is humanitarian or discretionary in nature, or motivated by considerations of equity, not implying that there has been a miscarriage of justice.25

(Emphasis Supplied)

3.3 ICCPR and the above-referred General Comment together emphasise the need for a legislative framework for payment of compensation to the victims of wrongful conviction, and the same to be done within a "reasonable period of time".

3.4 A total of 168 State parties, including India, have ratified the ICCPR. However, not all countries have converted their commitment into law. State parties have met their obligations under article 14(6) in one or more of the following ways: incorporation of the article (or a rewording of the article) directly into domestic legislation to create a statutory right to compensation; conferring a dedicated discretion on an administrative or judicial body to determine whether awards of compensation should be paid; or utilising the general power of domestic governments to make ex gratia payments.

3.5 These States have developed legal frameworks for remedying such miscarriage of justice by compensating the victims of wrongful convictions, providing them pecuniary and/or nonpecuniary assistance. These frameworks establish the State's responsibility of compensating the said victims and also lay down other substantive and procedural aspects of giving effect to this responsibility - quantum of compensation- with minimum and maximum limits in some cases- factors to be considered while deciding the right to compensation as well as while assessing the amount, claim procedure, the institution set up etc. The following section of this Chapter delves into few of these legal frameworks discussing their key features.



Wrongful Prosecution (Miscarriage of Justice) - Legal Remedies Back




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