Condensed: When a person has by a final decision been convicted of a criminal offence and 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.Alternative: A person has a right to compensation, if after a final decision convicting him or her of a criminal offence, serious flaws are found in the judicial process on the basis of new or newly discovered facts. The person will not be entitled to compensation if the he or she is wholly or party responsible for the non-disclosure of the fact. A decision is final if it irrevocable and no other remedies are available. A miscarriage of justice entails a serious failure in the judicial process involving grave prejudice to the convicted person. The state bears the burden of proving that in fact the accused person is blameworthy for the untimely disclosure of the material information. Comprehensive; Article 14(6) of the ICCPR provides: 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. Similar provisions are included in regional human rights treaties.[1] A decision is final ‘if … it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them.’[2] In WJH v the Netherlands, the HRC held that denial of compensation for a conviction that is quashed on appeal before the decision becomes final does not violate article 14(6) of the ICCPR.[3] I A miscarriage of justice is 'some serious failure in the judicial process involving grave prejudice to the convicted person'. In Muhonen v Finland, a person was serving a sentence imposed on him for objecting to military service on the basis of his ethical convictions; those same ethical convictions led the authorities to pardon him.[4] The HRC rejected a claim for compensation as there was no miscarriage of justice, as the pardon was granted entirely for equity reasons. In Dumont v Canada, Mr Dumont had been sentenced to 52 months imprisonment. He spent 34 months in prison. At a re-trial the Court held that his guilt had not been proved beyond reasonable doubt and he was acquitted. The Canadian authorities argued that Mr Dumont was not entitled to compensation as he ‘ha[d] not demonstrated that he has been the victim of a miscarriage of justice’.[5] The HRC took note of the ‘implications for the presumption of innocence’ of the acquitted person having the burden to prove his innocence.[6] However, the HRC did not find a separate violation of article 14(6) but only a violation of article 2(3) of the ICCPR (right to an effective remedy) read in conjunction with article 14(6). This finding was based on the lack of a ‘procedure for launching a new investigation in order to review the case and to possibly identify the real perpetrator’ and the delay in the civil proceedings.[7] It is a condition for compensation that the accused person should not have partly or wholly contributed to the non-disclosure of material information proving miscarriage of justice. The state bears the burden of proving that in fact the accused person is blameworthy for the untimely disclosure of the material information.[8] The requirement that payment of compensation for miscarriage of justice must be 'in accordance with law' envisages the existence of national laws regulating that process. To that end, states are required to put in place legislative provisions that deal with circumstances under which one is entitled to compensation, quantification as well as the burden of proving certain elements.[9]
[2] Council of Europe Explanatory report on Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (1985) para 22.
[3]WJH v The Netherlands communication No. 408/1990 (HRC 1992) para 6.3.
[4]Muhonen v Finland communication 89/1981 (HRC 1985) para 11.2.
[5]Dumont v Canada 1467/2006 (HRC 2010) para 14.9.
When a person has by a final decision been convicted of a criminal offence and 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. Alternative: A person has a right to compensation, if after a final decision convicting him or her of a criminal offence, serious flaws are found in the judicial process on the basis of new or newly discovered facts. The person will not be entitled to compensation if the he or she is wholly or party responsible for the non-disclosure of the fact.
A decision is final if it irrevocable and no other remedies are available. A miscarriage of justice entails a serious failure in the judicial process involving grave prejudice to the convicted person. The state bears the burden of proving that in fact the accused person is blameworthy for the untimely disclosure of the material information.
Comprehensive;
Article 14(6) of the ICCPR provides:
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.
Similar provisions are included in regional human rights treaties.[1]
A decision is final ‘if … it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them.’[2] In WJH v the Netherlands, the HRC held that denial of compensation for a conviction that is quashed on appeal before the decision becomes final does not violate article 14(6) of the ICCPR.[3] I
A miscarriage of justice is 'some serious failure in the judicial process involving grave prejudice to the convicted person'. In Muhonen v Finland, a person was serving a sentence imposed on him for objecting to military service on the basis of his ethical convictions; those same ethical convictions led the authorities to pardon him.[4] The HRC rejected a claim for compensation as there was no miscarriage of justice, as the pardon was granted entirely for equity reasons.
In Dumont v Canada, Mr Dumont had been sentenced to 52 months imprisonment. He spent 34 months in prison. At a re-trial the Court held that his guilt had not been proved beyond reasonable doubt and he was acquitted. The Canadian authorities argued that Mr Dumont was not entitled to compensation as he ‘ha[d] not demonstrated that he has been the victim of a miscarriage of justice’.[5] The HRC took note of the ‘implications for the presumption of innocence’ of the acquitted person having the burden to prove his innocence.[6] However, the HRC did not find a separate violation of article 14(6) but only a violation of article 2(3) of the ICCPR (right to an effective remedy) read in conjunction with article 14(6). This finding was based on the lack of a ‘procedure for launching a new investigation in order to review the case and to possibly identify the real perpetrator’ and the delay in the civil proceedings.[7]
It is a condition for compensation that the accused person should not have partly or wholly contributed to the non-disclosure of material information proving miscarriage of justice. The state bears the burden of proving that in fact the accused person is blameworthy for the untimely disclosure of the material information.[8]
The requirement that payment of compensation for miscarriage of justice must be 'in accordance with law' envisages the existence of national laws regulating that process. To that end, states are required to put in place legislative provisions that deal with circumstances under which one is entitled to compensation, quantification as well as the burden of proving certain elements.[9]
[1] ACHR art 10, Protocol 7 to the ECHR art 3.
[2] Council of Europe Explanatory report on Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (1985) para 22.
[3] WJH v The Netherlands communication No. 408/1990 (HRC 1992) para 6.3.
[4] Muhonen v Finland communication 89/1981 (HRC 1985) para 11.2.
[5] Dumont v Canada 1467/2006 (HRC 2010) para 14.9.
[6] Dumont v Canada para 23.5
[7] Dumont v Canada para 23.5 & 23.6.
[8] HRC General Comment 32 para 53.
[9] HRC General Comment 13 para 18.