FOREIGN LAW FOREIGN JURISPRUDENCE

Thailand In Pakistan, unlike other countries, in cases

where wrongfully convicted individuals who
As provided in Section 246 of the 1997 have been exonerated after an extensive and
Kingdom of Thailand Constitution: Any lengthy trial do not have a legitimate right to
person who has become the accused in a claim compensation. A very notable case of
criminal case and has been detained during wrongful conviction in 2001 of Rani Bibi,
the trial shall, if it appears from the final fourteen (14) years of age at the time of
judgment of that case that the accused did conviction in Pakistan, is enough to be an
not commit the offense or the act of the eye-opener to depict where the current
accused does not constitute an offense, be position of their country’s stand on the
entitled to appropriate compensation, criminal justice system about wrongful
expenses and the recovery of any right lost conviction. After wrongful imprisonment of
on account of that incident, upon the almost two (2) decades, it is sufficient to say
conditions and in the manner provided by law. that it ruined her teenage and adolescence
safely, and she received no compensation.
In order to fulfill and serve the provisions of Thousands of other individuals face the
its Constitution, the legislature enacted same, and despite these circumstances, in a
“Damages for the Injured Person and report of transparency, no records or data
Compensations and Expenses for the have been reported in Pakistan for wrongful
Accused in the Criminal Case Act, B.E. 2544 convictions. In addition, a study made by the
of 2001.” Foundation for Fundamental Rights revealed
that a soaring high percentage of 78% of
Among the compensation provided in Victims death sentences that were overturned by
of Crime Act BE 2544 of Thailand are Pakistan’s Supreme Court was decided by
provided in Section 21 to wit: lower courts, and even the process of proving
innocence is possible, overturning a decision
“Section 21. The determination of the takes a decade to achieve, it is the reason for
compensations and expenses under section why words “delayed justice is denied justice”
20 shall be in accordance with the following is being said.
criteria:

(1) the compensations for being taken into

custody shall be calculated from the number
of custody days at the same rate as
prescribed for the confinement in lien under
the Criminal Code;

(2) the necessary expenses for medical

treatment, including the expenses for physical
and mental rehabilitation, if the illness of an
accused is a direct effect of being prosecuted;

(3) the compensations in the case where an

accused has died, and his or her death is a
direct effect of being prosecuted, not
exceeding the amount prescribed in the
Ministerial Regulation;

(4) the compensations for the loss of earnings

while being prosecuted;

(5) the necessary expenses for legal

proceedings in accordance with the criteria,
procedures, and rates prescribed in the
Ministerial Regulation unless otherwise
prescribed by the law.”

In the case where there is a request to obtain

the right which has been lost due to a direct
effect of the judgment, and such right is
unable to recover, the Committee shall
determine the compensations for such right
as deemed appropriate.

The Committee shall determine whether the

compensations and expenses may be
granted to the accused or not and the amount
thereof by taking into consideration the
circumstance of the case, the grievance
suffered by the accused, and the opportunity
of the accused to receive other
compensations by other means.

B. Vietnam In February 2006, Nepalese Mangal Bahadur

Vietnam`s 2017 Law on State Compensation
Liability provides the state's responsibility to
compensate any individual who has material
or mental sufferings caused by the
performance of official duty in legal
proceedings or in activities of executing
judgments. Vietnam`s enactment and
amendment of this law look forward to
bringing a transparent legal mechanism for
the protection and compensation of damage
sufferers and the state`s liability to those
individuals.
Right to Claim Compensation
Gurung’s case was the first time for the
Malaysian government to agree to
compensate a wrongfully convicted individual.
Gurung pleaded guilty in the Petaling Jaya
magistrate’s court to entering Malaysia
illegally after he was only able to present a
photocopy of his passport as proof of entering
the country. A lawyer who presented
documentation proved that Gurung had a
valid passport and a permit to work in the
country. The reason behind Gurung’s plea of
guilty in court is because he did not know and
understand what he was admitting to after the
court. The underlying reason is that Gurung
was not provided with an interpreter.

“Article 5. These persons have the right to Immigration Department denied that it erred
claim state compensation: in the wrongful conviction of Gurung, and
officials still blamed him for his conviction.
The Malaysian government decided to award
- Damage sufferers; Gurung compensation for $2,246. A human
rights advocate in Malaysia criticized the offer
- Heirs of deceased damage sufferers; for it was bad and without value, considering
organizations taking over rights and what Gurung suffered and endured at the
obligations of damage-suffering organizations time of his conviction in a foreign country
that no longer exist; while also being caned. These experiences
were traumatic, and to make things worse, he
- At-law representatives of damage sufferers was wrongfully convicted. Gurung’s initial
that are required by the Civil Code; and, reaction was to decline the insufficient offer of
compensation, but Gurung’s friend
- Individuals or legal entities authorized by the emphasized that “it is not just about money
above persons to exercise the right to claim but his dignity.”
compensation.”

“Article 18. Scope of state compensation

liability in criminal proceedings (3) and (5) to
wit:

3. Temporarily detained persons, in favor of

whom competent agencies or persons in
criminal proceedings make judgments or
decisions determining that no crime has been
committed or their acts have constituted no
crime, or the time limit for case investigation
has expired while it is impossible to prove
their crime commission;

5. Persons against whom criminal cases

have been initiated, who have been
prosecuted or tried, or against whom
judgments have been executed without them
held custody or temporarily detained, who are
serving imprisonment sentences while
competent agencies or persons in criminal
proceedings make judgments or decisions
determining that no crime has been
committed or their acts do not constitute any
crime or the time limit for case investigation
has expired while it is impossible to prove
their crime commission;

Article 27. Damage due to mental suffering

(3) (b) and (3) (c) states the following:

b. Damage due to mental suffering in case

the damage sufferer is arrested, held in
custody or detained or serving an
imprisonment sentence shall be determined
as equal to 5 days’ basic wage for every day
of being under arrest, held in custody,
detained, or serving an imprisonment
sentence;

c. Damage due to mental suffering in case

the damage sufferer is neither arrested nor
held in custody nor detained or serving a
non-imprisonment sentence shall be
determined as equal to 2 days’ basic wage
for every day of being neither under arrest
nor held in custody nor detained or serving a
non-imprisonment sentence, except the case
specified at the point of this clause.”

Claimants may request compensation-settling

agencies to settle their claims and be
informed of the results of the settlement. The
Law allows a sufferer to initiate a lawsuit to
request a court to settle his/her compensation
claim when having a document as a basis for
claiming compensation in administrative
management, civil or criminal proceedings,
and criminal or civil judgment execution
activities. The State will then settle the
compensation claim after a document used
as a basis for claiming compensation is
issued.

In instances where the claimant is partially at

fault for causing the damage, the State will
only pay compensation for the damage after
subtracting the portion of the damage caused
by his/her act.

C. Indonesia The Indian Space Research Organization

(ISRO) spy case, to this day, is one of the
In the study of Aribowo et al. entitled most recognizable cases in India in a fight to
“Compensation Regulation Against Victims of claim compensation for wrongful conviction.
Mistakes in The Implementation of Criminal In November 1994, Nambi Narayanan, a
Law in Indonesia”, the application for former space scientist, was arrested for
compensation is distinguished as follows: espionage, but it was subsequently
discovered by the Central Bureau of
a. Claims for compensation whose cases Investigation (CBI) that the indictments
were not submitted to the Court (Article 95 against him were fraudulent. Originally,
paragraph 2 of the Criminal Procedure Code). scoundrel police officers were not uncommon
in India, cases where officers often fabricate
b. Claims for compensation whose cases are facts of cases and acts of impunity. Order of
submitted to court (Article 92 paragraph 1 in the High Court and the National Human
conjunction with paragraph 3, paragraph 4 Rights Commission to compensate
and paragraph 5 of the Criminal Procedure
Code).
Compensation claims whose cases are not
brought before the court because they do not
involve criminal acts but involve coercive
measures against the suspect, such as
arrests, detentions, and other illegal acts; in
these cases, the pretrial examines and
renders a decision on the compensation
claim.
Furthermore, the formal form of the
application or claim for compensation is
submitted to the Court which is authorized to
hear the case in question. Accordingly, the
application for compensation shall contain:
a) Identity of the applicant;
b) The case of the position that causes the
compensation is requested, by attaching the
evidence.
Narayanan for harassment, wrongful, and
unnecessary arrest or conviction is the
reason why the Supreme Court of India
awarded Narayanan compensation of Rs 50
lakh to be paid by the Kerala government,
which also paid him an additional Rs 1.3
crore in further compensation in 2020.
A report of the Law Commission of India
noted that the current set of remedies, claims,
and compensation grants for miscarriage of
justice remains complex and uncertain. The
report “Wrongful Prosecution (Miscarriage of
Justice): Legal Remedies” further noted that
the Indian legal system does not recognize
the right to compensate victims of unlawful
arrest or wrong conviction. Remedies and
monetary claims are possible, but such
recourse is only attainable as a constitutional
tort claim against the state. Courts, within
their power, can direct remuneration for
wrongful conviction, but they cannot dispense
an efficacious response from the state
because of the absence of specific laws on
payment of claims or compensation.

c) Details of the amount of compensation

requested.

According to the sound of Article 82

paragraph (1) letter c of the Criminal
Procedure Code, the examination of the
compensation case must have been decided
within 7 (seven) days.

This compensation arrangement is regulated

in the amendment to Article 9.1 of PP No. 27
of 1983, in PP No. 92 of 2015 it is stated that
the amount of compensation based on the
reasons referred to in the following should
receive at least Rp. 500,000.00 (five hundred
thousand rupiah) and a maximum of Rp.
100,000,000.00 (one hundred million rupiah).”

“Article 77 (b). Compensation and/or

rehabilitation for a person whose criminal
case is terminated at the stage: of
investigation or prosecution.”

“Article 95 (1). A suspect, an accused or a

convicted person shall have the right to
demand compensation for the harm of having
been arrested, detained, prosecuted and
adjudicated or subjected to other acts,
without reason founded on law or due to a
mistake with regard to his identity or to the
applicable law.”

xxx

The compensation of at least Rp.

25,000,000.00 (twenty-five million rupiah) and
a maximum of Rp. 300,000,000.00 (three
hundred million rupiah) for reasons referred
to in Article 9.2:

“Article 9.2. The amount of compensation

based on the reasons as referred to in Article
95 of the Criminal Procedure Code which
results in serious injury or disability so that
you cannot do work.”

xxx

If the criminal act results in the death of a

person, the amount of compensation is
regulated in the amendment to Article 9.3 PP
No. 27 of 1983, which states that:

"Article 9.3. The amount of compensation for

losses is based on the reasons as referred to
in Article 95 of the Criminal Procedure Code
which results in death, the amount of
compensation is at most a little Rp.
50,000,000.00 (fifty million rupiah) and a
maximum of Rp. 600,000,000.00 (six hundred
million rupiah)

In China, She Xianglin (1994) was convicted

of murder at the Yanmenkou Township of
Jingshan County in Hubei Province of China.
She was wrongfully convicted for more than a
decade, interrogated for ten consecutive
days, orally abused, and beaten by police
officers. Only after presenting new evidence
to prove his innocence did the Jiangshan
Country Court of Hubei Province of China
finally declare his innocence. The
Intermediate People’s Court (IPC), through
the help of Ms. She’s counsel, obtained RMB
456,900 or (US$71,779) in compensation for
the miscarriage of justice. Additionally, She
seeks more financial aid for his family,
considering the early death of his mother
caused by the distress of his conviction and
for being the reason for her daughter to get
out of school.

In another jurisprudence in China, Zhao

Zuohai, a 57-year-old farmer, was convicted
of the murder of his fellow villagers. After
more than a decade of wrongful conviction,
Zhao was finally found innocent and was
exonerated by Henan Provincial China (HPC)
after the victim murderer returned to their
village alive. This miscarriage of justice
brought an innocent man behind bars. Zhao,
thereafter, received RMB 650,000 or
(US$96,000) for compensation. Zhao
postulated that the compensation given was,
in fact, insufficient, taking into account that his
wife divorced him during the duration of his
wrongful imprisonment and was unable to
provide care for their children, who were
adopted by others while he was imprisoned.