Abstract
Compensation for Wrongful Convictions: A Comparative Perspective contains eleven chapters discussing the theory and practice of compensating wrongful convictions in nine jurisdictions. The countries were selected for their diverse compensatory proceedings models and unique historical pathways. The book examines six Western European countries, two Central and Eastern European countries, and the United States.
Each chapter on the nine jurisdictions covers: (1) origins and development of compensation for wrongful conviction; (2) sources of law regulating compensation; (3) grounds for compensation; (4) procedure for claiming compensation; (5) method of calculating compensation; (6) recourse claims of the state against those who caused a wrongful conviction; (7) the practice of compensation; and (8) the evaluation of the national mechanism for compensation. This structure allows for comparative conclusions on the similarities and differences between jurisdictions.
Chapter 1 discusses compensation for wrongful convictions in England and Wales. There are three phases in the evolution of compensation mechanisms in England and Wales: the first statutory scheme (1988), the ex gratia scheme (until 2006), and the 2018 revised scheme. The book argues that England and Wales have gone from leading in responses to miscarriages of justice to becoming one of the worst performers in compensating wrongful convictions. Refusing compensation to most who have their convictions quashed implies the state is not liable for these errors, and that the individual is unworthy of sympathy and fortunate to have escaped conviction.
Chapter 2 focuses on compensation for wrongful convictions in Germany. The German legislature has established a suitable framework for compensating wrongfully convicted individuals. However, there is a perception that the current process, while pragmatic and technically sound, may not sufficiently address the personal impact and psychological distress experienced by those wrongfully convicted. The authors suggest simplifying the criteria for determining compensation and conducting the entire procedure automatically.
In Chapter 3, the authors analyze the two main remedies against miscarriages of justice in the Italian criminal legal system: lato sensu and stricto sensu. The authors show how this compensation scheme represents a post iudicatum remedy provided for in the Italian legal system to alleviate the consequences of a wrongful conviction and as a necessary reaction to the unjust violation of the fundamental rights to dignity and personal freedom. Chapter 4 examines compensation for wrongful convictions in Spain. The introduction and regulation of compensation for wrongful conviction mechanisms in Spain is directly related to the constitutional framework of state liability for errors committed by public administration, which includes the judiciary. This is crucial because anyone who believes they have suffered harm due to judicial action has the right to seek compensation from the state, ensuring they are not deprived of the means to seek redress.
Chapter 5 explores this system in the Netherlands. The Code of Criminal Procedure has provided a route for former suspects to claim compensation after a wrongful conviction since 1926. The prior suspect has the right to compensation for the penalties and measures endured before their final conviction was overturned. The level of compensation must be determined fairly and consider the circumstances of each case. Compensating a wrongfully convicted suspect has, and will continue to have, deep roots in the Dutch legal system.
Chapter 6 features Norway. In Norway, the rules for compensating wrongful convictions have evolved in three stages. Initially, under the Criminal Procedure Act of 1887, compensation was only for financial losses. It wasn't until the revised Criminal Procedure Act of 1981, enforced in 1986, that non-financial damages were also considered, though the approach remained largely unchanged. A major overhaul occurred in 2003 when the compensation chapter of the Criminal Procedure Act was revised. This revision significantly expanded the rights of those wrongly convicted to claim compensation for both financial and non-financial impacts. It made recognition of these claims mandatory and standardized the process in certain areas. This update marked a substantial improvement in Norway's legal framework for addressing the consequences of wrongful convictions.
Then, Chapter 7 describes for wrongful convictions in Lithuania. Lithuanian laws concerning compensation for wrongful convictions are considered modern, and no legislative changes are anticipated, apart from a recent initiative to increase the maximum damages under the Compensation for Damage Law. However, despite a strict regime regarding public liability for wrongful convictions, the key prerequisite for liability is unlawfulness. According to judicial interpretation, merely being acquitted does not automatically meet this requirement. Therefore, individuals seeking compensation must prove deficiencies in the criminal procedure to qualify for compensation. This explains the limited number of cases in which compensation is granted according to case law.
Chapter 8 examines compensation for wrongful convictions in Poland. Over the past two decades, the evolution of policies and practices concerning compensation for wrongful convictions in Poland have not followed a straightforward path, making it challenging to determine their trajectory. The regulations exhibit both strengths and weaknesses. Despite the shortcomings in the system, it is deemed effective and capable of providing restitution for the damages incurred within a reasonable timeframe.
Finally, in Chapter 9, the author discusses compensation for wrongful convictions in the United States. There are several criticisms of existing statutory compensation schemes in the United States. First, the administrative procedures are too stringent in their eligibility requirements. Secondly, many states do not allow compensation if the exoneree played a role in their own conviction, such as through false confessions or pleading guilty. And the main critique of existing compensation laws for wrongful convictions leans towards favoring statutory compensation over alternative methods due to its higher success rate, but many critics find that the awards provided under statutory schemes are unsatisfactory.
All chapters in this book, except for the final two, analyze the law and practice of the compensation for wrongful conviction in a different country. In Chapter 10, the author focuses on international law standards, particularly on the minimum European standard as established in the ECHR and the case law of the European Court of Human Rights (ECtHR). This offers much more effective protection than that provided by the UN human rights bodies. The reference to international law serves as a background for comparative analysis, while the last chapter compares the substantive and procedural features of national legal systems regarding compensation for wrongful conviction. It offers a global view on the similarities and differences between the legal systems as well as identifiable trends regarding compensation for wrongful conviction. Special emphasis is placed on the accessibility and effectiveness of the existing schemes. The analysis seeks to determine the most effective form of compensation provisions.
This book is a good resource for exploring laws regarding compensation for wrongful conviction in Europe and the United States, but one suggestion would be to make a continuation of this work, related to compensation for wrongful conviction in Asia. The work provides insight into critical areas and fills an important gap in the study of wrongful convictions and may serve as an inspiration for various stakeholders who influence national compensation laws. The book is essential reading for law students, academics and policymakers working in the areas of criminal law and procedure. The author would like to express her gratitude to Lembaga Pengelola Dana Pendidikan (LPDP) under the Ministry of Finance of the Republic of Indonesia for supporting master studies and this review.
