Compensate Victims Of Miscarriage Of Justice

Wrongful conviction occurs when a person is convicted for a crime that he has not committed. Wrongful conviction is one form of miscarriage of justice. Blackstone’s formulation holds that it is better to allow ten guilty people to go free than to convict one innocent person. Many innocent persons have been wrongfully convicted by the court, especially by the District Courts and High Court and they have spent their irreversible and priceless time in prison. This is a serious violation of their liberty and right to life with dignity. Article 17 of the Constitution of Nepal states that no person shall be deprived of his or her liberty except by law. 

Similarly, Article 16 of the Constitution states that every person shall have the right to live with dignity. The wrongful conviction of an innocent person is one of the biggest failures of the state and justice system to ensure proper justice and protect individual liberty and human rights. But there is no law for the compensation and rehabilitation of wrongfully convicted persons in Nepal.  Article 21 of the statute states that a victim of crime shall have the right to justice, including social rehabilitation and compensation by law. Although the Crime Victim Protection Act 2075 does not recognise these types of victims. But they are victims of miscarriage of justice as they are wrongfully and illegally detained and deprived of their liberty.   

Miscarriage of justice

Article 9(5) of the International Covenant on Civil and Political Rights, 1966 states that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Article 14(6) of the same covenant states that 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. Nepal is a state party to the covenant. 

Two types of innocent persons are wrongfully convicted: factual innocence and legal innocence. There is a debate among scholars, lawyers, jurists and judges that only factual innocence must be granted compensation. Wrongful convictions may occur due to a mistaken eyewitness, eyewitness misidentification, false confession, false or misleading forensic evidence, official misconduct, poor investigation process, misconduct or negligence of agents such as police, prosecution, defence attorney, experts, etc.

In a false allegation of drugs case, Ramesh Sah v Nepal government (case no. 072-CR-1043) Supreme Court has stated that accused detained in detention for more than 9 years on charge of the offence in which they have not been involved due to malicious prosecution against such accused is the serious violation of their right to live with dignity and personal liberties. In addition to this, the court has stated that it believes that the process of compensation should be advanced based on the minimum wage for the period of imprisonment due to false charges against the defendants, and the necessary initiative should be taken by the Office of the Attorney General of Nepal. 

The Supreme Court has ordered the Office of the Attorney General of Nepal to take necessary initiatives to ensure that innocent individuals are not prosecuted based on false charges in the future and that defendants affected by false prosecution receive compensation. Similarly, a division bench of Justices Bishwambhar Shrestha and Prakash Man Singh Raut of the Supreme Court had ordered the government to compensate Nepal Police Havildar Khul Bahadur Kunwar, who was wrongfully convicted for stealing two service revolvers and was sentenced to four years in jail. 

The Supreme Court ordered the government to provide the pay and perks from the date he was sent to jail to the time of his retirement within two months. The apex court also told the government to provide him with a pension. Regarding the legal provisions for wrongfully convicted individuals, the US Federal compensation law provides $50,000 per year of wrongful incarceration. The majority of the 35 states with wrongful conviction compensation laws provide $50,000 or more for the compensation. 

Reasonable compensation 

Similarly, regarding miscarriages of justice under section 133 of the Criminal Justice Act 1988 of UK, there is provision that when a person has 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 beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted. Similarly, other countries like Germany, Italy, Spain, Canada and others have laws regarding compensation for miscarriage of justice. 

Wrongful convictions can devastate individuals and their families, leading to ruined lives, destroyed careers, family separations, marital breakdowns, and enduring stigmatisation that persists even after exoneration. So, the state must provide reasonable compensation by observing the trauma and immense suffering including physical, mental and psychological, and reputational damages that wrongfully convicted individuals have undergone for their rehabilitation and restoration of normal life. The state must pay pecuniary and non-pecuniary damages for all the injuries caused by it to the individual. So, there is a necessity for effective and proper statutory arrangements regarding reasonable and appropriate Compensation for Wrongful Conviction in Nepal. 

(The author is a BALLB student at the Kathmandu School of Law.)