This book presents a comprehensive comparative analysis of the substantive and procedural aspects of compensation for wrongful convictions in European countries and the USA, as well as the standard derived from the case law of the European Court of Human Rights. The collection draws comparative conclusions as to the similarities and differences between selected jurisdictions and assesses the effectiveness of the national compensation schemes. This enables the designing of an optimum model of compensation, offering accessibility and effectiveness to the victims of miscarriages of justice and being acceptable to jurisdictions based on common law, and civil law traditions, as well as inquisitorial and adversarial types of criminal process. Moreover, the discussion of the minimum European standard as established in the case law of the European Court of Human Rights enables readers to identify how the Strasbourg Court can contribute to strengthening the compensation scheme. The book will be essential reading for students, academics and policymakers working in the areas of criminal law and procedure.
Author(s): Wojciech Jasinski, Karolina Kremens
Series: Routledge Contemporary Issues in Criminal Justice and Procedure
Publisher: Routledge
Year: 2023
Language: English
Pages: 260
City: London
Cover
Half Title
Series Page
Title Page
Copyright Page
Table of Contents
List of tables
List of contributors
Introduction
1. Compensation for wrongful convictions in England and Wales
1 Introduction
2 Appellate process
3 Origins and development of compensation for wrongful convictions
4 Procedure for claiming compensation
5 Calculating the amount of compensation
6 Human rights challenges
7 Conclusion
2. Compensation for wrongful convictions in Germany
1 Origins and development of compensation for wrongful conviction
1.1 Development and material scope of the compensation for wrongful conviction according to the StrEG
1.2 Other claims for compensation and repayments
1.3 Special statutory cases of compensation for wrongful convictions
2 Sources of law regulating compensation for wrongful conviction
3 Grounds for compensation for wrongful convictions
3.1 Prerequisites to compensation according to § 1 StrEG
3.2 Mandatory exclusion and discretionary denial of compensation according to §§ 5, 6 StrEG
4 Scope and calculation of the amount of compensation
5 Procedure for claiming compensation
6 The recourse claim of the state against persons who caused wrongful conviction
7 The practice of compensating the wrongfully convicted
8 The evaluation of the national mechanism of the compensation for wrongful convictions
8.1 Evaluation of the proceedings
8.2 Evaluation of the grounds for exclusion or denial of compensation
8.3 Evaluation of the extent of compensation
9 Conclusions
3. Compensation for wrongful convictions in Italy
1 Miscarriages of justice and redress
2 Miscarriages of justice eligible for compensation in light of constitutional and supranational principles
3 The legal basis of compensation for wrongful detention and wrongful conviction
4 The relevant statutory framework: the provisions of the Italian code of criminal procedure
4.1 Redressing wrongful convictions under Article 643 CCP
4.2 The bars to compensation: malice and gross negligence
4.3 Compensation proceedings
4.4 The criteria for determining the amount of compensation
5 Conclusions
4. Compensation for wrongful convictions in Spain
1 Origins and development of compensation for wrongful conviction
2 Sources of law regulating compensation for wrongful conviction
3 Grounds for compensation for wrongful conviction
3.1 Judicial error [error judicial] (Art. 292 LOPJ)
3.2 Irregular functioning of administration of justice [funcionamiento anormal de la administración de justicia] (Art. 292 LOPJ)
3.3 Unfair detention on remand [prisión provisional indebida] (Art. 294 LOPJ)
4 Procedure for claiming compensation
4.1 Administrative procedure
4.2 Specialities of the procedure for claiming compensation in case of judicial error
5 Legal aid
6 Calculating the amount of compensation
7 Evaluation of the national mechanism of the compensation for wrongful convictions
5. Compensation for wrongful convictions in the Netherlands
1 Introduction: origins and development of compensation for wrongful convictions
2 Legal framework
2.1 Background of the current legal framework
2.2 Grounds for compensation for wrongful convictions
2.3 Procedure for claiming compensation under the CCP
3 The amount of compensation
4 The recourse claim of the state against persons who caused a wrongful conviction
5 The practice of compensating the wrongfully convicted
6 Conclusions
6. Compensation for wrongful convictions in Norway
1 Short background about the Norwegian reopening model for wrongful convictions
2 Origins and development of compensation for wrongful convictions
3 Sources of law (e.g. parliamentary acts, precedents) regulating compensation for wrongful convictions
4 Grounds for compensation for wrongful convictions
4.1 Damages for direct pecuniary loss
4.2 Damages for non-pecuniary loss
5 Procedure for claiming compensation
6 Calculating the amount of compensation
7 The recourse claim of the state against persons who caused wrongful convictions
8 The practice of compensating the wrongfully convicted
9 Evaluation of the national mechanism for the compensation for wrongful convictions
7. Compensation for wrongful convictions in Lithuania
1 Origins and development of compensation for unlawful conviction
2 Sources of law regulating compensation for unlawful conviction
3 Grounds for compensation for unlawful conviction
4 Grounds of exemption of the State from liability for unlawful conviction
5 Persons entitled to compensation for unlawful conviction
6 Procedure for claiming compensation in court
6.1 Procedure before the first-instance court
6.2 Appeal procedure
6.3 Cassation procedure
7 Calculating the amount of compensation
8 The recourse claim of the State against persons who caused unlawful conviction
9 The practice of compensating the unlawfully convicted
10 An evaluation of the national mechanism for compensation for unlawful conviction
8. Compensation for wrongful convictions in Poland
1 Introduction
2 Origins and development of compensation for wrongful conviction
3 Sources of law regulating compensation for wrongful conviction
4 Grounds for compensation for wrongful conviction
5 Procedure for claiming compensation
6 Calculating the amount of compensation
7 The recourse claim of the State Treasury against persons who caused wrongful convictions
8 The practice of compensating the wrongfully convicted
9 Conclusions
9. Compensation for wrongful convictions in the United States
1 Introduction
2 Compensation Through Tort Claims, Civil Rights Suits, and Moral Bills of Obligation
2.1 Common-Law Tort Claims
2.2 Civil Rights Suits
2.3 Bills of Moral Obligation
3 Wrongful Conviction Compensation Statutes
3.1 Varying Procedures
3.2 Grounds for Compensation
3.3 The Standard(s) for Compensation
3.4 Calculating Compensation
3.5 The Practice of Compensating for Wrongful Conviction and Incarceration
4 An Evaluation of the U.S. Approaches
10. European standard of compensation for wrongful convictions
1 Introduction
2 The right to compensation under Article 3 of Protocol No. 7
3 The relationship between the right to compensation under Article 3 of Protocol No. 7 and Article 5 para. 5 of the Convention
4 Compensation for “wrongful imposition” of security measures in the framework of criminal proceedings
5 Conclusions
11. In quest of the optimum model for compensating wrongful convictions
1 Introduction
2 The notion of wrongful conviction and eligibility for compensation
2.1 Understanding of the notion of ‘wrongful conviction’
2.2 Other eligibility criteria for compensation for wrongful conviction
2.3 Conclusions
3 Procedure for claiming compensation
3.1 Procedural regime and authority deciding on the claim
3.2 Compensation claim – who can apply and how it should be done
3.3 The conduct of the proceedings and the right to appeal
3.4 Conclusions
4 Calculating compensation
4.1 Criteria for calculating compensation
4.2 Compensation caps
4.3 Alternatives to monetary compensation
4.4 Conclusions
5 Concluding remarks
Index
