Articles
Compensation for the Wrongfully Convicted: A Pressing Need for Statutory Arrangements in Nepal
Jiwan Kumar Acharya- Rashmi Regmi
- Sandhya Bista
Published 2021-03-30
Keywords
- Compensation, Compensatory Statute, Damages, ex-gratia payment, Innocence, Miscarriage of Justice, Wrongful Conviction.
How to Cite
Kumar Acharya, J. ., Regmi, R. ., & Bista, S. . (2021). Compensation for the Wrongfully Convicted: A Pressing Need for Statutory Arrangements in Nepal. Kathmandu School of Law Review, 9(1), 90–125. Retrieved from https://kslreview.org/index.php/kslr/article/view/2209
Abstract
Wrongful conviction appears as a form of a miscarriage of justice. Various factors might be responsible for the wrongful conviction of innocent individuals. However, irrespective of the cause, the aftermath of exoneration upon them is beyond imagination. Though they are released after acquittal, an absence of any compensatory provision for the wrongfully convicted appears to be similar to that of incarceration. Taking these concerns into account, the paper in its first part attempts to briefly overview the underlying causes behind wrongful convictions from an individualistic and systemic approach. Presenting some inherent impacts upon the innocent victims through this form of a miscarriage of justice, it justifies rationales for compensatory awards for the victims, emphasizing state obligation. In its second part, the paper attempts to overview the situation of wrongful conviction in Nepal, observing some landmark cases as well as orders made therein by the Supreme Court regarding the state liability upon the victims and orders for the statutory arrangements to address the compensatory claims. This paper justifies the urgency of enacting dedicated legislations for compensation in a wrongful conviction, observing the unavailability of other avenues to obtain compensatory damages at present. It also proposes some considerations to be taken into account while framing such legislation. In dealing with these considerations, this paper proposes a dedicated, independent, external and accessible mechanism to approach compensatory claims by the victims and assessment and award of amounts of damages for them. Examining possible avenues for fund arrangements to award such compensatory claims, the paper finally proposes a separate fund to arrange resources for such compensatory damages to the victims.
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References
1 Jan De Keijser, et al., ‘Wrongful Convictions and the Blackstone Ratio: An Empirical Analysis of Public Attitudes’, published on Punishment and Society, volume 16:1, 2014, p. 34.
2 Ibid.
3 Ibid.
4 Kathryn M Campbell, ‘Exoneration and compensation for wrongly Convicted: Enhancing Procedural Justice?’ Manitoba Law Journal, volume 42:3, 2019, p.249.
5 Huff C Ronald and Martin Killians, ‘Cross-National Perspectives and issues-Introduction’, in Huff C Ronald and Martin Killians (eds.), Wrongful Conviction: International Perspectives on Miscarriages of Justice, Temple University Press, Philadelphia, 2008, p.5.
6 Contemporary Comment ‘Miscarriages-What is the problem?’, A Just Result: Extracurial Inquiries and Unsafe Verdicts, Institute of Criminology, the State Library of New South Wales, 28 October 1992, p. 74 available at http://www.austlii.edu.au/au/journals/CICrimJust/1993/18.pdf?fbclid=IwAR32dnUYzAHsm4-EyqzThAmEy5r12pf29ISe93Gu8j3wSGOxfS50XJzhSeA , accessed on 7 September, 2021.
7 Miscarriage of justice may arise from the misconduct, negligent or malicious actions of the state parties such as police, prosecutor, defense attorney, the court and non-state parties such as media, expert etc. If the police and/or the prosecution engage in some form of misconduct in investigating and/or prosecuting the person and if there is wrongful or malicious prosecution, it prima-facially attracts miscarriage of justice no matter whether or not it leads to a conviction by any court of law, and whether or not it leads to any incarceration. During the interview with the authors of this paper, criminal law expert senior advocate Lav Mainali argued that the moment when a police arrests an individual merely on the ground of information/Fir without investigating about the truthfulness about those information/FIR or without investigating relationship between such arrestee and the alleged information/FIR which ultimately leads to the wrongful conviction. The miscarriage of justice also can result from the error in interpretation of or execution of the laws by the courts violating due process, causing wrongful conviction to the innocent individual. The court also may cause the miscarriage of justice. The absence of judicial approach, non-application of judicial mind, non-consideration or improper consideration of material evidence and inconsistencies with faulty reasoning by the court may lead to the erroneous decision. See Ayodhya Dube and Ors. vs Ram Sumer Singh, AIR 1981 SC 1415.
Also, individuals are victimized of miscarriage of justice inside the prison. They might encounter the situation where they are locked behind the bar unjustifiably extended period of time than that of expected time in an offense or imprisoned sentence pronounced by the court.
See Padammaya Gurung v. Office of PM and Council of Ministers and others, Writ no. 071-WO-0512. In this case, Padammaya, the applicant was raped and got pregnant. She killed the baby subsequently after the birth and was convicted on the offense of Homicide and sentenced for 5 years of imprisonment by the Supreme Court of Nepal. The applicant was imprisoned from 2048-09-02 and was expected to get released on 2053-09-01. But she spent more time on prison for extra 5 years 6 months and 10 days and got released on 2059-03-11 because of negligence of the prison authority. The prisoners might also get victimized, suffering abuse and prison violence whilst incarceration.
See also Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590.
8 Contemporary Comment on paper ‘Miscarriages-What is the problem?’ A Just Result: Extra curial Inquiries and Unsafe Verdicts, the Institute of Criminology, the state Library of New South wales, 28 October 1992, p. 74 available at http://www.austlii.edu.au/au/journals/CICrimJust/1993/18.pdf?fbclid=IwAR32dnUYzAHsm4-EyqzThAmEy5r12pf29ISe93Gu8j3wSGOxfS50XJzhSeA , accessed on 7 September 2021.
9 Law Commission of India, 2018, ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’, Report No. 277, p. 2 available at https://lawcommissionofindia.nic.in/reports/Report277.pdf?fbclid=IwAR0qMbe8LcO2XuT6CyN3idfVcH2rhaWXrgKPJZpcIMNvyt0f2KX6x4jPj3o, accessed on 8 September 2021.
10 Adrain, Hoel, ‘Compensation for wrongful conviction’, Trends and Issues in Crime and Criminal justice, Australian Institute of Criminology, no.356 , May 2008, p.1.
11 Ibid, p. 2.
12 Ibid, p.1.
13 Roach Kent and Sangha Bibi, ‘Introduction to symposium on wrongful convictions’, Flinders Law Journal, 2015, p.156, available at http://classic.austlii.edu.au/au/journals/FlinLawJl/2015/5.pdf, accessed on 3 October 2021.
14 Cassell Paul G, ‘Overstating America’s Wrongful Conviction Rate? Reassessing The Conventional Wisdom About The Prevalence Of Wrongful Convictions’ Arizona Law Review’ Vol 60:815 p.819, available at https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1130&context=scholarship , accessed on 29 September 2021.
15 Larry Laudan, ‘The presumption of Innocence: Material or approbatory’, The X Annual Conference on Analytic Philosophy of Law, 2005, p.8 available at https://link.springer.com/content/pdf/10.1007/s10609-016-9281-8.pdf , accessed on 29 September 2021.
16 Ibid.
17 Jennifer Gwynne Case, ‘How Wide Should the Actual Innocence Gateway Be? An Attempt To Clarify the Miscarriage of Justice Exception for Federal Habeas Corpus Proceedings’, William & Mary Law Review, volume 50:2, 2008-09, p. -677-678.
18 Khul Bahadur Kunwar v. Office of PM and Council of Ministers and others, Writ no. 069-WO-1301. The applicant was Sargent (hawoldar) of police in Central Police Training center. On 2042-04-15, the applicant and his friend Yagya Bahadur K.C. were convicted by Regional Police Special Court, Patan for stealing two service revolver. Kunwar and his friend Yagya Bahadur were never informed about their accusation and never confessed for the crime. They \were sent to Central Jail and Kunwar spent 4 years of imprisonment there. After the release from the Central Jail serving the punishment, the person named Ghanshyam Adhikari (one of the prisoner from central jail) confronted and confessed that he had stolen the two service revolver for what Kunwar was convicted of. Later, through writ procedure, Khul Bahadur Kunwar and Yagya Bahadur K.C, made claim for the expunge of conviction made against them.
19 State V. McCollum, 364 S.E.2d 112 (NC 1988) In this case, two brothers Henry McCollum and Leon Brown were convicted of the rape and murder of an 11 year old girl, were coerced into confession and police fabricated evidence against them. Later, The North Carolina Actual Innocence Inquiry Commission an independent agency of USA investigated potential wrongful convictions in this case. The investigation tracked the evidence and conducted DNA test. DNA test then exonerated them reversing their conviction and implicated another man. It took thirty years for both of the brothers to set free.
20 A person Chitra Bahadur Majhi from Okhaldhunga Nepal along with his two sons Kamal and Surendra were charged on the offense of Homicide against Gyan Bahadur Majhi. The police arrested them and filed case in Okhaldhunga District Court. The Court sent them to custody observing their involvement on the offense which was wrongly presented by the police. Surprisingly, the man who was thought to be dead returned back to the village after five months. Chitra Bahadur was tortured and forced to sign in the confession statement. Even it was later confirmed that the stick that police presented as an evidence as weapon in killing Gyan Bahadur Majhi had a chicken blood on it. The accused were wrongly convicted on false and fabricated case.
See: Central for Investigative Journalism, Nepal, 14 May 2016, available at https://cijnepal.org.np/guilty-until-proven-innocent/?fbclid=IwAR0jzaJTxzlMpJ9u707HU-PfEkeP-ynpMnD0bTarSQXL80j-3NeGGpQHrFs, accessed on 29 September 2021.
21 Frederick McLellan Myles, Compensation for Wrongful Convictions and the Innocence Continuum, Criminal Law Bulletin, volume 52:2, 2016, p. 354.
22 Carrie Leonetti, ‘The Innocence Checklist’, American Criminal Law Review, volume 58:97, 2021, pp.107-108.
23 Ibid, p.108.
24 See Code of District of Columbia, Chap-16, Sec.802, On sealing of Criminal records on grounds of actual innocence has a provision that mentions that ‘a person arrested for a charge with the commission of a criminal offense pursuant to the District of Columbia Official Code or the District of Columbia Municipal Regulations whose prosecution has been terminated without conviction may file a motion with the Clerk at any time to seal all of the records of the arrest and related court proceedings on grounds of actual innocence/ factual innocence’.
25 Myles (n 21); For the detail acquaintance about the presumption of innocence and material or probatory innocence, see pp. 357- 362.
26 Elies Van Sliedregt, ‘A contemporary reflection on the presumption of innocence’, International Review of Penal Law, volume 80, 2009.
27 Myles (n 21).
28 Ibid, p.359.
29 Ibid, p.353.
30 Ibid, p.346.
31 Ibid.
32 Ibid, p.346.
33 Ibid.
34 Hoel (n 10), p. 3.
35 Leo Richard A., ‘False Confessions: Causes, Consequences and Implication’ Vol. 37, Number 3, 2009, p.333.
36 Ibid, p.338 on Voluntary Confession as one of that is offered in the absence of police interrogation. It is explained by the internal psychological states of needs of the confessor or by external pressure brought to bear on the confessor by someone other than the police.
37 Hoel (n 10), p. 4.
38 Rachel Dioso-Villa et al, ‘Investigation to Exoneration: A systemic Review of Wrongful Conviction in Australia’, Griffith University, Queensland, Australia, volume 28:2, 2016, p.163.
43 Randall Dale ADAMS, v. The STATE of Texas, No. 60037.Court of Criminal Appeals of Texas, En Banc, 31 January 1979.
44 State of Mont. v. Gilham, 932 F. Supp. 1215 (D. Mont. 1996).
45 Lowery v. County of Riley, Case No. 04-3101-JTM (D. Kan. Sep. 15, 2006).
46 Faridi, Mohammad et al., ‘Undoing Time: A Proposal for Compensation for Wrongful Imprisonment of Innocent Individuals’ Western New England Law Review, Vol. 34, Issue 1, art.2, p. 4.
47 Blum, Binyamin, ‘Evidence Law: Convictions Based on Circumstantial Evidence’, The Judges’ Book, Article.11, vol.3 regarding false Circumstances for wrongful conviction, First See: Circumstances evidence proves other facts from which one may infer the existence of material elements. Example: When an eye witness provides testimony that s/he saw the person in the crime scene with the gun infer the person shoot the victim but circumstantial evidence witness testimony’s says that the defendant was seen fleeing away from the crime scene shortly after she heard gunshot.
48 Rachel Dioso- Villa et al, ‘Investigation to Exoneration: A systemic Review of Wrongful Conviction in Australia’, Griffith University, Queensland, Australia, Vol.28, Number 2, 2016, p.163. Also, See: Case of Chitra Bahadur Majhi of Okhaldhunga.
49 Gross. Samuel R. ‘Government Misconduct and Convicting the Innocent The Role of Prosecutor, Police and other Law Enforcement’, National Registry of Exoneration, September 1, 2020, Official Misconduct is defined as perjury of law enforcement official or forensic fraud through prosecutor, police officer, forensic analyst or child welfare worker who violated an official duty in the investigation or prosecution and that violation contributed to the conviction of a defendant who was later exonerated.
50 US Supreme Court in in Brady v. Maryland case 1963, realized that if there is the evidence that disproves the accusation made to the accused or that exonerates the innocent proving the innocence of the defendant should, it must be disclosed by the prosecutor. Wrongful conviction occurs sometimes when the prosecutor does not disclose the exculpatory evidence, causing conviction to the innocent person.
51 Hoel (n 10), p. 4; See also - Cutler Brian L., ‘Conviction of the Innocent: Lessons from Psychological Research’, Wisconsin University of Law School, Chapter-14, Findley Keith A., Tunnel Vision, 2014 p.1.
Tunnel vision is understood as “compendium of common heuristics and logical fallacies which focus a suspect in building the case for conviction in such a way by selecting the lens of observing and evaluating the condition and filter it in a way that evidence that points away the guilt is ignored. Also. See: Steven Avery case where Avery was convicted of a brutal rape despite strong alibi evidence and even though the true perpetrator, who should have been a prime suspect was well known to police and prosecutors. The tunnel vision in this case prevented from considering alternative theories about the crime. Later on, through DNA exoneration Avery was acquitted in 2003 proving his innocence.
52 Clow Kimberley A. & Ricciardelli. Rose, ‘Causes of Wrongful Conviction: Looking at Student Knowledge’ Criminal Justice Education, March 2008 DOI: 10.1080/10511250801892979 p. 12.
53 Hoston, William T., et al. "Wrongfully Convicted, Rightfully Exonerated: The Lives of Cornelius Dupree Jr. and Anthony Massingill." Journal of Pan African Studies, vol. 10, no. 5, July 2017, pp. 3, 15.
54 Huff, Ronald C., ‘Guilty Until Proved Innocent: Wrongful Conviction and Public Policy’ Crime and Delinquency, 1 October 1986, DOI: 0.1177/0011128786032004007.
55 Roberts, Paul Craig, ‘The Causes of Wrongful Conviction’, The Independent Review, v. VII, n.4, Spring 2003, ISSN 1086-1653p. 572. Prosecutor can force plea to elevate their conviction rate by raising the number and seriousness of the charges to the defendant. Also the defense counsel sometimes suggest the defendant to plea bargain at the conviction at trail that reduce the charges of punishment when it is taken.
56 Reward as a causes of wrongful conviction. In Nepal, the Money Laundering Prevention Act, 2063 has a provision of reward to the person who may be given an amount equal to ten percent of the amount claimed or one million rupees whichever is lesser as reward if the person has made a complaint against an offence under the Act. Such provision can be sometimes abused in greed of obtaining money, as a result the innocent individuals might be investigated with mal intent resulting wrongful conviction.
57 Davis, Deborah, ‘From False Confession to Wrongful Conviction: Seven Psychological Processes’, the Journal of Psychiatry & Law, Jan. 2009, DOI: 10.1177/009318531003800103. In this article the Author Deborah Davis has extensively dealt on the causes of wrongful conviction. Analyzing, false confession from the seven psychological processes which are (i) misleading specialized knowledge (2) tunnel vision and confirmation biases, (3) motivational biases, (4) emotional influences on thinking and behavior; (5) institutional influences on evidence production and decision making; and inadequate context for evaluation of claims of innocence, including (6) inadequate or incorrect relevant knowledge, and (7) progressively constricting relevant evidence. The Author has took reference from the Norfolk Four case indicating how multiple causes established in chain can result in false confession. This case has been compared with that of Salem Witch Trails 1692 Massachusetts in America.Also, during the interview The Deputy Attorney General Padam Prasad Pandey had stated that wrongful conviction also occurs in Nepal because of nature of the prosecutors not to avoid prosecuting each and every cases pressures groups and organization function as the catalyst in registering fake case. Similarly, media trial and confession in police custody is responsible to result wrongful conviction. Lack of scientific advancement in DNA and other materials to establish evidences also appears as the reason of having the higher rate of Wrongful Conviction in our country.
58 Clow, K.A., Leach, A-M, & Ricciardelli, R. (2011). Life after wrongful conviction and In B.L. Cutler’s (Ed.) Conviction of the Innocent: Lessons from Psychological Research (pp. 327-341). Washington: APA Books.
Case of Shiva Poudel: Poudel was detained on an accusation of murder of Sanjaya Lama was attacked on December 6, 2011. HE was kept in judicial custody at Chitwan Prison. He was critically injured in an attack by a group of UML-affiliated Youth Association Nepal Cadres, in custody of Bharatpur Jail who died while undergoing treatment at Neuro Hospital, Bansbari, and Kathmnadu. See The Kathmandu Post: “Tarun dal leader murder: 14 convicted, 8 get life imprisonment” Publ. 4 April 2014 available at https://kathmandupost.com/national/2014/04/04/tarun-dal-leader-murder-14-convicted-8-get-life-imprisonment accessed on 13 December 2021.
59 Hoel (n 10), p. 4, para. 3.
60 Ibid, para. 5 .
61 Ibid.
62 Ibid.
63 Wrongful Prosecution a Miscarriage of Justice: Need for procedural reforms in Pakistan
64 Hoel (n 10), p. 4.
65 Naughton, Criminologizing Wrongful Convictions 2003; 2007: Chap. 8.
66 Hoel ( n 10), p. 61.
67 Kerry M. Karaffa, Jaimie, and Julie M. Koch, Perceptions of Exonerees’ Compensating the Innocent:, Deservingness to Receive Financial Compensation for Wrongful Convictions, Criminal Justice Policy Review, SAGE Publications, published on 2015, p. 2., DOI: 10.1177/0887403415607049.
68 Ricciardelli, Rose et.al, ‘Now I See it for What it really is: The Impact of Participation in an Innocence Project Practicum on Criminology Students’. pp. 2, 3.
69 Myles (n 21), p. 348.
70 Ibid, p. 349.
71 See O’Neil v. State Case where the Ohio Supreme Court provided the judgment that “the legislature and legal system have a responsibility to admit the mistake and diligently attempt to make the person as whole as is possible where the person has been deprived of his freedom and forced to live with criminals. Indeed the legal system is capable of creating few errors that have a greater impact upon an individual than to incarcerate him when he has committed no crime.”; Also, See Deborah M. Mostaghel, ‘Wrongfully Incarcerated, Randomly Compensated - How to Fund Wrongful-Conviction Compensation Statutes’, Indiana Law Review, vol. 44:503, 2011, p. 5,10.
72 UNHRC, Communication No 1467/2006, UN Doc CCPR/C/98/D/1467/2006
Dumont, a Canadian national was wrongly convicted in sexual offense in 1992 and served 34 months in prison before he was released. His conviction was quashed and he was acquitted from the charge in 2001 by the Canadian Québec Court of Appeal. Canadian Federal/Provincial/Territorial Guidelines had some compensatory provisions for the wrongfully convicted individuals. However, Dumont was not entitled for the compensation even though appealing in various Canadian authorities. In 2010, He brought a claim to the United Nations Human Rights Committee accusing Canada violating its obligation to compensate him under Article 14, 6 of the ICCPR. The respondent Canadian government argued that the applicant had never been proven innocent of the crime in question and was thus not eligible for compensation because the victim in the offense had the doubt as to whether or not the applicant was the perpetrator, therefore the court concluded that the victim’s statements gave rise to a reasonable doubt in regards to his guilt leading to his acquittal, but the court did not rule on his innocence. The human rights committee in its opinion prescribed the Canadian government to provide an effective remedy to Dumont in the form of adequate compensation – as well as ensuring that “similar violations do not occur in future.” See para 25. Similarly, the committee required that the State party provide evidence about the measures taken within 180 days. See para 26.
73 Dushi, Desara, ‘Social Contract and the Government Legitimacy’, Mediterranean Journal of Social Sciences, Nov, 2015, p. 393.
74 Exoneration and Compensation for the Wrongly Convicted: Enhancing Procedural Justice? KATHRYN M. CAMPBELL, MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 3, p. 267.
75 Kerry M. Karaffa, Jaimie, and Julie M. Koch, Perceptions of Exonerees’ Compensating the Innocent:, Deservingness to Receive Financial Compensation for Wrongful Convictions , Criminal Justice Policy Review, SAGE Publications, published on 2015, p. 2., DOI: 10.1177/0887403415607049.
76 Alanna Trivelli, ‘Compensating the wrongfullt convicted: A proposal to make victims of wrongful incarceration whole again’, Richmond Journal of Law and the Public Interest, 2016, volume 9:3, p. 267, published on 2016, available at http://scholarship.richmond.edu/jolpi/vol19/iss3/7, accessed on 29 September 2021.
77 Ibid.
78 Ibid, p.270-271.
79 Ibid, p.281.
80 Campbell, Kathryn M. ‘Exoneration and Compensation for the Wrongly Convicted: Enhancing Procedural Justice?’ Manitoba Law Journal, Vol. 42, Issue 3, p. 255.
81 Ibid, p.254.
82 Scott Rodd, ‘What Do States Owe People Who are Wrongfully Convicted?’ Justice & Business of Government, Pew, Stateline, March 14, 2017.
83 International Covenant on Civil and Political Rights, art.9, para.5.
84 Ibid, art.14, para. 6.
85 Treaty Act of Nepal 2047(1990), p. 9.
86 Madan Narayan v. Office of PM and Council of Ministers and others, D. 10069, vol.8, 2075 In this writ, the applicant reported that he was a serious victim of wrongful Conviction. On date 2060-07-08, when the applicant was on duty in District Police Office, he was accused on the murder of Rita Lama Moktan. The District Court and Patan High Court convicted the applicant with life imprisonment but Supreme Court made him release on date 2076-01-1 because of which he filed the writ petition claiming to get back the job he was dispatched from and compensate his salary while he was in prison.
87 Govinda Mainali was wrongfully convicted in December 2000 in the offense of rape and murder of Yasuko Watanabe in March 8, 1997. Watanabe used to work by night as a prostitute and used to work by day as a respected economist for the Tokyo Electric Power Company. The dead body of Yasuko Watanabe was found on March 19, 1997 with strangled condition in an apartment, which she had used for her sexual liaisons. Mainali was an immigrant in Japan. He had been arrested on March 23, 1997 for over-staying his work visa. He used to live with his Nepali friends in an apartment of the building, where Watanabe was murdered. Mainali admitted to police investigators that he had payed Watanabe twice to have sex with him. But in connection to the offense, he said that he had not seen her for days prior to her rape and murder, and there were no witnesses to claim his statement otherwise. Mainali was charged with murder of Yasuko Watanabe. He was acquitted in April 2000 by the Tokyo District Court based on the judge's finding there was no credible evidence of his guilt. In December 2000 the Tokyo High Court reversed acquittal and sentenced him to life in prison. Japan's Supreme Court rejected his appeal on October 22, 2003. In March 2005 Mainali filed a new appeal seeking a retrial. But it was denied. On July 21, 2011 the Japanese newspaper Yomuiri Shimbun reported that the prosecution had secretly conducted DNA testing of crime scene evidence. DNA testing of semen recovered from Watanabe's vagina excluded Mainali as the source. Along with not matching the semen's DNA, the report also noted that the DNA of a pubic hair recovered from the crime scene, DNA of a blood stain on the Burberry coat worn by Watanabe, and DNA of saliva found on the victim's chest also excluded Mainali as the source. Five days later, on July 26, Mainali filed a petition for a retrial with the Tokyo High Court based on the fact that the prosecution had never disclosed that semen had been recovered, and that the prosecution's secret tests conclusively excluded him as the man who raped and murdered her. After the petition, prosecutors disclosed in September 2011 that Mainali's trial lawyers had not been provided evidence that his blood type B did not match the type O blood of saliva found on Watanabe's breast. Based on the new DNA and blood evidence the High Court set-aside Mainali's conviction and ordered a new trial on June 7, 2012. The presiding High Court Judge Shoji Ogawa stated, "Suspicion has arisen that another person might have murdered the woman and it is assumed a guilty ruling would not have been handed down if the results of this analysis had been presented in the trial." Mainali was released from prison about 3p.m. that same day and transferred to a detention facility, since he had overstayed his visa and thus was in Japan illegally. On June 16, 2012 Mainali was flown to Kathmandu, Nepal after spending 15 years in prison and being away from home for 18 years. On October 30, 2012 the Tokyo High Court declared after a retrial that Mainali was not guilty. Exoneration of "Govinda Mainali was abnormal in Japan, which has a 99.8% conviction rate. After the acquittal, he sought for 68 million Japanese ¥ ($790,000) for wrongly convicting and sentencing him. The Tokyo District Court endorsed paying about ¥68 million in compensation to him.” See: http://forejustice.org/db/Mainali--Govinda-Prasad-.html also, see: https://jiadep.org/Govinda.html.
88 Durga Prasad Subedi, a Nepali citizen from Illam spent 40 years of his life in prison without Fair Hearing who was wrongfully convicted for the case of murder. Chief Justice Prakash Srivastav and Rajashri Bhardwaj of West Bangal High Court has ordered West Bangal government to compensate IC 5 Lakh within 6 weeks of the order. See https://deshsanchar.com/2021/12/09/588131/ ?fbclid=IwAR3s5hV05ZvYPH5JXUaNesYyDu0WKI8C8BlITrgsitZjk5Pm49kP7_6Rhzg , accessed on 27 Mangsir.
89 Khul Bahadur Kunwar v. Police Special Court, NKP 2076, volume 4, DN 10250.
Khul Bahadur was imprisoned for 4 years without any crime commission, got out of jail and knew that another person Ghanshyam Adhikari was the main culprit. He after filed the case in the Supreme Court regarding his wrongful conviction.
90 Amrit Prasad Shrestha v. Office of PM and Council of Ministers, Writ. 079-WS-0076, D. 0006, NKP 2075, Vol. 1 Constitutional Bench. The writ petitioned was filed in Supreme Court of Nepal by the legal practitioners realizing unavailability of compensatory arrangements for the wrongly convicted victims. The petitioners demanded the compensatory statute and pleaded before the court to observe critically by making different institutions responsible such as the concerned investigating officer for malicious investigation, prosecutor for wrong accusation etc. Because of such circumstances the innocent person suffers from the violation of personal liberty, along with violation of social, economic, employment opportunities.
91 Som Prasad Luitel v. Office of PM and Council of Ministers and others, Writ. 072-WO-0285 In this writ, the applicant was accused for the Homicide case in 2067-02-03 got release after 32 months, 2 days spending time in prison who was not guilty but innocent and was under punishment because of wrong accusation and malicious investigation of the state for which the applicant issued a writ in Supreme Court.
92 Padammaya Gurung v. Office of PM and Council of Ministers and others, Writ. 071-WO-0512 In this case, Padammaya, the applicant was raped and got pregnant. She killed the baby subsequently after the birth and was convicted on the offense of Homicide and sentenced for 5 years of imprisonment by the Supreme Court of Nepal. The applicant was imprisoned from 2048-09-02 and was expected to get released on 2053-09-01. But she spent more time on prison for extra 5 years 6 months and 10 days and got released on 2059-03-11 because of negligence of the prison authority.
93 Madan Narayan v. Office of PM and Council of Ministers and others, D. 10069, vol.8, 2075 In this writ, the applicant reported that he was a serious victim of wrongful Conviction. On date 2060-07-08, when the applicant was on duty in District Police Office, he was accused on the murder of Rita Lama Moktan. The District Court and Patan High Court convicted the applicant with life imprisonment but Supreme Court made him release on date 2076-01-1 because of which he filed the writ petition claiming to get back the job he was dispatched from and compensate his salary while he was in prison.
94 Mijares Laura Patricia, Compensation for Wrongful Convictions: A study towards an effective regime of tort liability, thesis submitted to department of Law, University of Toronto, 2012.
95 Mostaghel (n 71).
96 Ibid, p.515.
97 Ibid, p.516.
98 Muluki criminal Code 2018, s. 99.
99 Ibid, s. 99(2).
100 Ibid, s. 99(3).
101 Mostaghel (n 71).
102 Ibid, p. 514.
103 Constitution of Nepal 2072(2015), art.133, art. 144.
104 Ibid, art. 21.
105 The Crime Victim Protection Act, 2075 (2018), s.2.
Clauses f, hand j of Section 2 of this act defines who are victims that are mainly the direct victims of crime as victim of first grade, the indirect victims (who are not involved in the offence but has to bear the damage) as victim of second grade and the family victims.
106 Constitution of Nepal 2072(2015), art. 46.
107 See Supra.75, p. 510.
108 Adele Bernhard, ‘When Justice Fails: Indemnification for Unjust Conviction’ (1999), Pace Law Faculty Publications, p. 93.
109 Ibid, p. 94.
110 Ibid.
111 Heneage Meridth J, ‘Rightful Compensation for a Wrongful Conviction: In Defense of a Compensation Statute in the State of Wyoming’, Wyoming Law Review, vol19, number 2, January 2019, p. 310.
112 Mostaghel (n 71).
113 Ibid. SEE: O’Neil v. State Case: In this case, O’Neil was convicted and sentenced by the Court for armed robbery. The actual perpetrator confessed after three and half years of O’Neil’s conviction. He then, claimed for compensation for wrongfully conviction but was disregarded by the Court of claim and it was dismissed. Observing this, Ohio General Assembly enacted special legislation. The legislation authorizes him to file a claim for loss of education, employment and general damages that compensated him $6,967. The amount compensated was not enough for the erroneous conviction so appeal was made on the fewer amounts where Ohio Court of Appeal made Court of claims to rethink on the judgment.
114 Adele Bernhard, ‘When Justice Fails: Indemnification for Unjust Conviction’ (1999), Pace Law Faculty Publications,, p.95.
115 Compensation Guidelines for Wrongful Conviction and Imprisonment, New Zealand, August 2020 New Zealand has adopted Compensation under Ex Gratia Payments for Persons who are wrongfully convicted by adopting Compensation Guidelines for Wrongful Conviction and Imprisonment that is forwarded to the Ministry of Justice which aims to vindicate innocent defendants and compensate reasonably for losses arising from wrongful conviction. On Point 30 of the guideline losses are compensable to the extend people are attributable to the applicant’s wrongful conviction and imprisonment and for the period following conviction. The compensation is provided on the losses that are recognized as pecuniary and non-pecuniary losses. On point 29, types of compensation are listed that in detail talks about how such exonerated people who suffered can be compensated in many circumstances.
116 Human Rights Act, 2004, Australian Capital Territory, Australia, sec-23 The Australian Capital Territory (ACT) has incorporated a rewarded version of Article 14(6) by adopting the ACT Legislation under the Human Rights Act 2004. Section 23 of Human Rights Act has a provision of Compensation for wrongful Conviction an individual has right to be compensated according to the law, when anyone is convicted by a final decision of a criminal offense and the person suffers punishment because of the conviction and the conviction is reversed or is pardoned on the ground that a newly discovered fact shows conclusively that there has been miscarriage of justice.
117 Compensation for Wrongfully Convicted and Imprisoned Persons 1988.
118 Compensation for Guidelines for Wrongful Conviction and Imprisonment. August 2020, Background and Purpose, pt.4. Nothing in the Guidelines requires the Government to agree to compensate a person in any particular case.
119 Nicola Southall, ‘Looking Backwards and Forwards: A Critique of New Zealand’s System for Compensating the Wrongly Convicted’, A dissertation submitted in partial fulfillment of the degree of Bachelor of Laws (with Honours) at the University of Otaga, October 2016, p. 6.
120 Hoel (n 10), p.2.
121 Michael O’Keeffe on the Submission to the Australian Productivity Commission Inquiry into Access to Justice, 4th Novermber, 2013, p.11.
122 Tom Percy QC, ‘Despised Outsiders Compensation for Wrongful Convictions’, p.1.
123 Villa, Rachel Dioso, ‘Out of Grace: Inequity in Post- Exoneration for Wrongful Conviction’, p. 359.
124 Hoel (n 10), p. 6.
125 Villa (n 123).
126 Myles (n 21).
127 Lonergan Jessica R., ‘Protecting the innocent: a model for comprehensive, individualized compensation of the exonerated’, Legislation and Public Policy, Vol 11:405d.
128 Bernhard Adele, ‘Justice Still F Justice Still Fails: A Re ails: A Review of Recent E view of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated’, Darke Law Review, vol.52,2004, p. 708-711.
129 Trivelli (n 76), p. 274.
130 Ibid.
131 Adele Bernhard, ‘Justice Still F Justice Still Fails: A Review of Recent view of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated’, Darke Law Review, vol.52, 2004, p.713.
132 Ibid.
133 Trivelli (n 129).
134 Ibid.
135 International Covenant on Civil and Political Rights 1966, art.14(6).
136 Ibid, p.102.
137 See ‘Causes of Wrongful Conviction’ discussed in this paper.
138 Pecuniary losses cover mostly the tangible or objective monitory losses. The economic losses including other comprises loss of investments and the value thereof, loss of business, loss of profit, and loss due to delay; Trivelli (n 76).
139 Non-pecuniary compensation attempts to recover the intangible or subjective losses. The non-pecuniary compensation comprises compensation from losses such as medical expenses and treatment, loss of earnings, impairment of earning capacity, loss of physical function, loss of services, education, aggravation of older mental or physical conditions, pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium, grief, humiliation and loss of favorable reputation. It also attempts to compensate past and future losses too. See Trivelli (n 76).
140 TEX. CIV. PRAC. & REM. CODE ANN. § 103.001, 103.052–.054 (West 2015)
Texas provides one of the most exemplary statutes, providing $80,000 per year of imprisonment with annuity, as well as additional of $25,000 per year on death row and registered as a sex offender. Also, awarding compensation of child support, 120 hours of tuition, opportunity to be a part of Texas State Employmee Health Plan and various other reintegration services is in this statute. SEE: Chunias, Jennifer L., Aufgang, Yael D. “Beyond Monetary Compensation: The Need for Comprehensive Services for the Wrongfully Convicted”, Vol. 28, Issue 1(2008), p.- 108 and, Lonergan, Jessica R. “Protecting the Innocent: A Model for Comprehensive, Individualized Compensation of the Exonerated”
141 VT. STAT. ANN. tit. 13, § 5574(b) (2) (Supp. 2007).
This state statute provides mental and physical health care by granting exonerate for upto 10 years of eligibility for the Vermont Health Access Plan. SEE: Chunias, Jennifer L., Aufgang, Yael D. “Beyond Monetary Compensation: The Need for Comprehensive Services for the Wrongfully Convicted”, Vol. 28, Issue 1(2008), p. 108.
142 MASS. GEN. LAWS ANN. ch. 258D, § 5(A).
Massachusetts’ statue encourages the court to grant orders entitling claiming to receive 50% discount on tuition fees at any of its state or community college, also in University of Massachusetts. Massachusetts’ statute permits the claimant to request a separate hearing for the expungement of records. Also, it provides assistance in applying for health insurance within 60 days of their scheduled release through Department of Correction’s Mass Health Initiative. See Chunias, Jennifer L., Aufgang, Yael D. “Beyond Monetary Compensation: The Need for Comprehensive Services for the Wrongfully Convicted”, 2008, vol. 28:1, p. 108; Jessica R. Lonergan, “Protecting the Innocent: A Model for Comprehensive, Individualized Compensation of the Exonerated”, volume 11:2, 2008.
143 MD. CODE ANN., STATE FIN. & PROC. § 10-501 (LexisNexis, 2015)
Maryland compensation scheme composes a reasonable monetary amount plus counseling services. Also, following benefits such as state identification card and other documents necessary for the individual’s health or welfare on the individuals release from confinement, health care and dental care for at least 5 years after the individuals release form confinement; Ibid Chunias, Aufgang & Yael.
144 Compensation Guidelines for Wrongful Conviction and Imprisonment, New Zealand, August 2020.
In the guidelines, the point 32 has a base rate that provides compensation for, a. Non-pecuniary losses, being: 1. Loss of liberty, 2.loss of reputation, 3. Loss or interruption of family or other personal relations, 4. Loss of interruption of school or study opportunities, 5. Mental or emotional harm and b. Pecuniary losses.
145 Compensation for Wrongfully Convicted and Imprisoned Persons.
The considerations for determining the quantum of compensation under the Guidelines include both non-pecuniary and pecuniary losses: (i) Non-pecuniary losses a) Loss of liberty and the physical and mental harshness and indignities of incarceration; b) loss of reputation which would take into account a consideration of any previous criminal record; c) loss or interruption of family or other personal relationships. (ii) Pecuniary Losses a) Loss of livelihood, including of earnings, with adjustments for income tax and for benefits received while incarcerated; b) loss of future earning abilities; c) loss of property or other consequential financial losses resulting from incarceration.
146 MONT. CODE ANN. §53-1-214 (2015): Montana offers only educational aid to victims of wrongful conviction.
147 The Vermont state of USA has provision for minimum 30,000USD to maximum 60,000 USD per year as compensation for each year of incarceration.)
148 Pora V. Attorney-General (Newzealand [2017] NZHC 2081;
“The timing and size of Pora's compensation award meant that impact of inflation was particularly acute, since 16 years had passed since the setting of the $100,000 benchmarks. The fact that the Guidelines did not expressly refer to inflation adjustment was not decisive. The $100,000 benchmark and the appropriate non-pecuniary loss figure should be interpreted as permitting adjustment where that was necessary to achieve the purpose of the Guidelines in a particular case.”
See also https://www.justice.govt.nz/assets/Documents/Publications/pora-inflation-adjustment-20171106-cabinet-paper.pdf.
149 Guidelines Compensation for Wrongfully Convicted and Imprisoned Persons, The procedure to the claim and implementation implies when an individual meets the eligibility criteria, the provincial and federal ministers responsible for criminal justice will undertake to have appoint either judicial or administrative inquiry that examines the matter of compensation. The provincial or federal governments would undertake to act on the report submitted by Commission of Inquiry. However the authors here believed that instead of appointing judicial and administrative inquiries separately in each cases, it would have far more certainty and uniformity if a dedicated mechanism is established to hear and adjudicate every claims of compensatory damages.
150 Compensation Guidelines for Wrongful Conviction and Imprisonment, August 2020, paras.11, 12.
Minister of Justice receives application regarding the claim of compensation, examines merits of those claims and determine the procedure to asses and decide the application. Similarly, in the application filed by the person who is convicted under military law, the Ministry of Defense takes the charge in application with consultation with Ministry of Justice and provides advice to the Government.
151 Criminal Justice Act 1988, Sec. 133 The Secretary of the State determines the right of compensation after the application of the compensation is lodged. The amount of it shall be assessed by assessor who is appointed by Secretary of State.
152 Revenue Tribunal Act, 2031(1974), This Act entails the provision on the establishment and formation of tribunal in Section 3(2) that says “Each Tribunal shall consists of following members appointed by the Government of Nepal who are Law Member, Revenue Member, Accounts Member..” with the qualifications that are further discussed in Section 4 of this Act.
153 Law Commission of India, 2018, ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’, Report No. 277, p. 85 available at https://lawcommissionofindia.nic.in/reports/Report277.pdf?fbclid=IwAR0qMbe8LcO2XuT6CyN3idfVcH2rhaWXrgKPJZpcIMNvyt0f2KX6x4jPj3o, accessed on 17 September 2021.
154 New Hampshire Revised Statute (2010), New Hampshire, United States of America, Chap.541-B: 13.
155 North Carolina General Statute, New Hampshire, United States of America, ss. 148-84.
156 National Penal Code 2074(2017), s.48.
157 The Criminal Offence (Sentencing and Execution) Act, 2074 (2017), s.48.
158 The Victim Protection Act 2(d), s.29.
159 National Penal Code 2074(2017), s.48(3).
160 Mostaghel (n 71).161 Ibid. See also the fact that California mandated that all costs associated with representing inmates pursuant to Penal Code section 1405 to investigate and, if appropriate, file motions for DNA testing of biological evidence where such testing could prove innocence, be borne by the State. In that same year, California allocated $1.6 million dollars over two years to provide counsel to assist inmates with innocence claims. For 2002 and 2003, the NCIP [Northern California Innocence Project] and CIP [California Innocence Project] received state funding. That funding was discontinued as a result of state budget cuts in 2003.
162 Ibid.
163 Trivelli (n 76).
164 Mostaghel (n 71).
2 Ibid.
3 Ibid.
4 Kathryn M Campbell, ‘Exoneration and compensation for wrongly Convicted: Enhancing Procedural Justice?’ Manitoba Law Journal, volume 42:3, 2019, p.249.
5 Huff C Ronald and Martin Killians, ‘Cross-National Perspectives and issues-Introduction’, in Huff C Ronald and Martin Killians (eds.), Wrongful Conviction: International Perspectives on Miscarriages of Justice, Temple University Press, Philadelphia, 2008, p.5.
6 Contemporary Comment ‘Miscarriages-What is the problem?’, A Just Result: Extracurial Inquiries and Unsafe Verdicts, Institute of Criminology, the State Library of New South Wales, 28 October 1992, p. 74 available at http://www.austlii.edu.au/au/journals/CICrimJust/1993/18.pdf?fbclid=IwAR32dnUYzAHsm4-EyqzThAmEy5r12pf29ISe93Gu8j3wSGOxfS50XJzhSeA , accessed on 7 September, 2021.
7 Miscarriage of justice may arise from the misconduct, negligent or malicious actions of the state parties such as police, prosecutor, defense attorney, the court and non-state parties such as media, expert etc. If the police and/or the prosecution engage in some form of misconduct in investigating and/or prosecuting the person and if there is wrongful or malicious prosecution, it prima-facially attracts miscarriage of justice no matter whether or not it leads to a conviction by any court of law, and whether or not it leads to any incarceration. During the interview with the authors of this paper, criminal law expert senior advocate Lav Mainali argued that the moment when a police arrests an individual merely on the ground of information/Fir without investigating about the truthfulness about those information/FIR or without investigating relationship between such arrestee and the alleged information/FIR which ultimately leads to the wrongful conviction. The miscarriage of justice also can result from the error in interpretation of or execution of the laws by the courts violating due process, causing wrongful conviction to the innocent individual. The court also may cause the miscarriage of justice. The absence of judicial approach, non-application of judicial mind, non-consideration or improper consideration of material evidence and inconsistencies with faulty reasoning by the court may lead to the erroneous decision. See Ayodhya Dube and Ors. vs Ram Sumer Singh, AIR 1981 SC 1415.
Also, individuals are victimized of miscarriage of justice inside the prison. They might encounter the situation where they are locked behind the bar unjustifiably extended period of time than that of expected time in an offense or imprisoned sentence pronounced by the court.
See Padammaya Gurung v. Office of PM and Council of Ministers and others, Writ no. 071-WO-0512. In this case, Padammaya, the applicant was raped and got pregnant. She killed the baby subsequently after the birth and was convicted on the offense of Homicide and sentenced for 5 years of imprisonment by the Supreme Court of Nepal. The applicant was imprisoned from 2048-09-02 and was expected to get released on 2053-09-01. But she spent more time on prison for extra 5 years 6 months and 10 days and got released on 2059-03-11 because of negligence of the prison authority. The prisoners might also get victimized, suffering abuse and prison violence whilst incarceration.
See also Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590.
8 Contemporary Comment on paper ‘Miscarriages-What is the problem?’ A Just Result: Extra curial Inquiries and Unsafe Verdicts, the Institute of Criminology, the state Library of New South wales, 28 October 1992, p. 74 available at http://www.austlii.edu.au/au/journals/CICrimJust/1993/18.pdf?fbclid=IwAR32dnUYzAHsm4-EyqzThAmEy5r12pf29ISe93Gu8j3wSGOxfS50XJzhSeA , accessed on 7 September 2021.
9 Law Commission of India, 2018, ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’, Report No. 277, p. 2 available at https://lawcommissionofindia.nic.in/reports/Report277.pdf?fbclid=IwAR0qMbe8LcO2XuT6CyN3idfVcH2rhaWXrgKPJZpcIMNvyt0f2KX6x4jPj3o, accessed on 8 September 2021.
10 Adrain, Hoel, ‘Compensation for wrongful conviction’, Trends and Issues in Crime and Criminal justice, Australian Institute of Criminology, no.356 , May 2008, p.1.
11 Ibid, p. 2.
12 Ibid, p.1.
13 Roach Kent and Sangha Bibi, ‘Introduction to symposium on wrongful convictions’, Flinders Law Journal, 2015, p.156, available at http://classic.austlii.edu.au/au/journals/FlinLawJl/2015/5.pdf, accessed on 3 October 2021.
14 Cassell Paul G, ‘Overstating America’s Wrongful Conviction Rate? Reassessing The Conventional Wisdom About The Prevalence Of Wrongful Convictions’ Arizona Law Review’ Vol 60:815 p.819, available at https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1130&context=scholarship , accessed on 29 September 2021.
15 Larry Laudan, ‘The presumption of Innocence: Material or approbatory’, The X Annual Conference on Analytic Philosophy of Law, 2005, p.8 available at https://link.springer.com/content/pdf/10.1007/s10609-016-9281-8.pdf , accessed on 29 September 2021.
16 Ibid.
17 Jennifer Gwynne Case, ‘How Wide Should the Actual Innocence Gateway Be? An Attempt To Clarify the Miscarriage of Justice Exception for Federal Habeas Corpus Proceedings’, William & Mary Law Review, volume 50:2, 2008-09, p. -677-678.
18 Khul Bahadur Kunwar v. Office of PM and Council of Ministers and others, Writ no. 069-WO-1301. The applicant was Sargent (hawoldar) of police in Central Police Training center. On 2042-04-15, the applicant and his friend Yagya Bahadur K.C. were convicted by Regional Police Special Court, Patan for stealing two service revolver. Kunwar and his friend Yagya Bahadur were never informed about their accusation and never confessed for the crime. They \were sent to Central Jail and Kunwar spent 4 years of imprisonment there. After the release from the Central Jail serving the punishment, the person named Ghanshyam Adhikari (one of the prisoner from central jail) confronted and confessed that he had stolen the two service revolver for what Kunwar was convicted of. Later, through writ procedure, Khul Bahadur Kunwar and Yagya Bahadur K.C, made claim for the expunge of conviction made against them.
19 State V. McCollum, 364 S.E.2d 112 (NC 1988) In this case, two brothers Henry McCollum and Leon Brown were convicted of the rape and murder of an 11 year old girl, were coerced into confession and police fabricated evidence against them. Later, The North Carolina Actual Innocence Inquiry Commission an independent agency of USA investigated potential wrongful convictions in this case. The investigation tracked the evidence and conducted DNA test. DNA test then exonerated them reversing their conviction and implicated another man. It took thirty years for both of the brothers to set free.
20 A person Chitra Bahadur Majhi from Okhaldhunga Nepal along with his two sons Kamal and Surendra were charged on the offense of Homicide against Gyan Bahadur Majhi. The police arrested them and filed case in Okhaldhunga District Court. The Court sent them to custody observing their involvement on the offense which was wrongly presented by the police. Surprisingly, the man who was thought to be dead returned back to the village after five months. Chitra Bahadur was tortured and forced to sign in the confession statement. Even it was later confirmed that the stick that police presented as an evidence as weapon in killing Gyan Bahadur Majhi had a chicken blood on it. The accused were wrongly convicted on false and fabricated case.
See: Central for Investigative Journalism, Nepal, 14 May 2016, available at https://cijnepal.org.np/guilty-until-proven-innocent/?fbclid=IwAR0jzaJTxzlMpJ9u707HU-PfEkeP-ynpMnD0bTarSQXL80j-3NeGGpQHrFs, accessed on 29 September 2021.
21 Frederick McLellan Myles, Compensation for Wrongful Convictions and the Innocence Continuum, Criminal Law Bulletin, volume 52:2, 2016, p. 354.
22 Carrie Leonetti, ‘The Innocence Checklist’, American Criminal Law Review, volume 58:97, 2021, pp.107-108.
23 Ibid, p.108.
24 See Code of District of Columbia, Chap-16, Sec.802, On sealing of Criminal records on grounds of actual innocence has a provision that mentions that ‘a person arrested for a charge with the commission of a criminal offense pursuant to the District of Columbia Official Code or the District of Columbia Municipal Regulations whose prosecution has been terminated without conviction may file a motion with the Clerk at any time to seal all of the records of the arrest and related court proceedings on grounds of actual innocence/ factual innocence’.
25 Myles (n 21); For the detail acquaintance about the presumption of innocence and material or probatory innocence, see pp. 357- 362.
26 Elies Van Sliedregt, ‘A contemporary reflection on the presumption of innocence’, International Review of Penal Law, volume 80, 2009.
27 Myles (n 21).
28 Ibid, p.359.
29 Ibid, p.353.
30 Ibid, p.346.
31 Ibid.
32 Ibid, p.346.
33 Ibid.
34 Hoel (n 10), p. 3.
35 Leo Richard A., ‘False Confessions: Causes, Consequences and Implication’ Vol. 37, Number 3, 2009, p.333.
36 Ibid, p.338 on Voluntary Confession as one of that is offered in the absence of police interrogation. It is explained by the internal psychological states of needs of the confessor or by external pressure brought to bear on the confessor by someone other than the police.
37 Hoel (n 10), p. 4.
38 Rachel Dioso-Villa et al, ‘Investigation to Exoneration: A systemic Review of Wrongful Conviction in Australia’, Griffith University, Queensland, Australia, volume 28:2, 2016, p.163.
43 Randall Dale ADAMS, v. The STATE of Texas, No. 60037.Court of Criminal Appeals of Texas, En Banc, 31 January 1979.
44 State of Mont. v. Gilham, 932 F. Supp. 1215 (D. Mont. 1996).
45 Lowery v. County of Riley, Case No. 04-3101-JTM (D. Kan. Sep. 15, 2006).
46 Faridi, Mohammad et al., ‘Undoing Time: A Proposal for Compensation for Wrongful Imprisonment of Innocent Individuals’ Western New England Law Review, Vol. 34, Issue 1, art.2, p. 4.
47 Blum, Binyamin, ‘Evidence Law: Convictions Based on Circumstantial Evidence’, The Judges’ Book, Article.11, vol.3 regarding false Circumstances for wrongful conviction, First See: Circumstances evidence proves other facts from which one may infer the existence of material elements. Example: When an eye witness provides testimony that s/he saw the person in the crime scene with the gun infer the person shoot the victim but circumstantial evidence witness testimony’s says that the defendant was seen fleeing away from the crime scene shortly after she heard gunshot.
48 Rachel Dioso- Villa et al, ‘Investigation to Exoneration: A systemic Review of Wrongful Conviction in Australia’, Griffith University, Queensland, Australia, Vol.28, Number 2, 2016, p.163. Also, See: Case of Chitra Bahadur Majhi of Okhaldhunga.
49 Gross. Samuel R. ‘Government Misconduct and Convicting the Innocent The Role of Prosecutor, Police and other Law Enforcement’, National Registry of Exoneration, September 1, 2020, Official Misconduct is defined as perjury of law enforcement official or forensic fraud through prosecutor, police officer, forensic analyst or child welfare worker who violated an official duty in the investigation or prosecution and that violation contributed to the conviction of a defendant who was later exonerated.
50 US Supreme Court in in Brady v. Maryland case 1963, realized that if there is the evidence that disproves the accusation made to the accused or that exonerates the innocent proving the innocence of the defendant should, it must be disclosed by the prosecutor. Wrongful conviction occurs sometimes when the prosecutor does not disclose the exculpatory evidence, causing conviction to the innocent person.
51 Hoel (n 10), p. 4; See also - Cutler Brian L., ‘Conviction of the Innocent: Lessons from Psychological Research’, Wisconsin University of Law School, Chapter-14, Findley Keith A., Tunnel Vision, 2014 p.1.
Tunnel vision is understood as “compendium of common heuristics and logical fallacies which focus a suspect in building the case for conviction in such a way by selecting the lens of observing and evaluating the condition and filter it in a way that evidence that points away the guilt is ignored. Also. See: Steven Avery case where Avery was convicted of a brutal rape despite strong alibi evidence and even though the true perpetrator, who should have been a prime suspect was well known to police and prosecutors. The tunnel vision in this case prevented from considering alternative theories about the crime. Later on, through DNA exoneration Avery was acquitted in 2003 proving his innocence.
52 Clow Kimberley A. & Ricciardelli. Rose, ‘Causes of Wrongful Conviction: Looking at Student Knowledge’ Criminal Justice Education, March 2008 DOI: 10.1080/10511250801892979 p. 12.
53 Hoston, William T., et al. "Wrongfully Convicted, Rightfully Exonerated: The Lives of Cornelius Dupree Jr. and Anthony Massingill." Journal of Pan African Studies, vol. 10, no. 5, July 2017, pp. 3, 15.
54 Huff, Ronald C., ‘Guilty Until Proved Innocent: Wrongful Conviction and Public Policy’ Crime and Delinquency, 1 October 1986, DOI: 0.1177/0011128786032004007.
55 Roberts, Paul Craig, ‘The Causes of Wrongful Conviction’, The Independent Review, v. VII, n.4, Spring 2003, ISSN 1086-1653p. 572. Prosecutor can force plea to elevate their conviction rate by raising the number and seriousness of the charges to the defendant. Also the defense counsel sometimes suggest the defendant to plea bargain at the conviction at trail that reduce the charges of punishment when it is taken.
56 Reward as a causes of wrongful conviction. In Nepal, the Money Laundering Prevention Act, 2063 has a provision of reward to the person who may be given an amount equal to ten percent of the amount claimed or one million rupees whichever is lesser as reward if the person has made a complaint against an offence under the Act. Such provision can be sometimes abused in greed of obtaining money, as a result the innocent individuals might be investigated with mal intent resulting wrongful conviction.
57 Davis, Deborah, ‘From False Confession to Wrongful Conviction: Seven Psychological Processes’, the Journal of Psychiatry & Law, Jan. 2009, DOI: 10.1177/009318531003800103. In this article the Author Deborah Davis has extensively dealt on the causes of wrongful conviction. Analyzing, false confession from the seven psychological processes which are (i) misleading specialized knowledge (2) tunnel vision and confirmation biases, (3) motivational biases, (4) emotional influences on thinking and behavior; (5) institutional influences on evidence production and decision making; and inadequate context for evaluation of claims of innocence, including (6) inadequate or incorrect relevant knowledge, and (7) progressively constricting relevant evidence. The Author has took reference from the Norfolk Four case indicating how multiple causes established in chain can result in false confession. This case has been compared with that of Salem Witch Trails 1692 Massachusetts in America.Also, during the interview The Deputy Attorney General Padam Prasad Pandey had stated that wrongful conviction also occurs in Nepal because of nature of the prosecutors not to avoid prosecuting each and every cases pressures groups and organization function as the catalyst in registering fake case. Similarly, media trial and confession in police custody is responsible to result wrongful conviction. Lack of scientific advancement in DNA and other materials to establish evidences also appears as the reason of having the higher rate of Wrongful Conviction in our country.
58 Clow, K.A., Leach, A-M, & Ricciardelli, R. (2011). Life after wrongful conviction and In B.L. Cutler’s (Ed.) Conviction of the Innocent: Lessons from Psychological Research (pp. 327-341). Washington: APA Books.
Case of Shiva Poudel: Poudel was detained on an accusation of murder of Sanjaya Lama was attacked on December 6, 2011. HE was kept in judicial custody at Chitwan Prison. He was critically injured in an attack by a group of UML-affiliated Youth Association Nepal Cadres, in custody of Bharatpur Jail who died while undergoing treatment at Neuro Hospital, Bansbari, and Kathmnadu. See The Kathmandu Post: “Tarun dal leader murder: 14 convicted, 8 get life imprisonment” Publ. 4 April 2014 available at https://kathmandupost.com/national/2014/04/04/tarun-dal-leader-murder-14-convicted-8-get-life-imprisonment accessed on 13 December 2021.
59 Hoel (n 10), p. 4, para. 3.
60 Ibid, para. 5 .
61 Ibid.
62 Ibid.
63 Wrongful Prosecution a Miscarriage of Justice: Need for procedural reforms in Pakistan
64 Hoel (n 10), p. 4.
65 Naughton, Criminologizing Wrongful Convictions 2003; 2007: Chap. 8.
66 Hoel ( n 10), p. 61.
67 Kerry M. Karaffa, Jaimie, and Julie M. Koch, Perceptions of Exonerees’ Compensating the Innocent:, Deservingness to Receive Financial Compensation for Wrongful Convictions, Criminal Justice Policy Review, SAGE Publications, published on 2015, p. 2., DOI: 10.1177/0887403415607049.
68 Ricciardelli, Rose et.al, ‘Now I See it for What it really is: The Impact of Participation in an Innocence Project Practicum on Criminology Students’. pp. 2, 3.
69 Myles (n 21), p. 348.
70 Ibid, p. 349.
71 See O’Neil v. State Case where the Ohio Supreme Court provided the judgment that “the legislature and legal system have a responsibility to admit the mistake and diligently attempt to make the person as whole as is possible where the person has been deprived of his freedom and forced to live with criminals. Indeed the legal system is capable of creating few errors that have a greater impact upon an individual than to incarcerate him when he has committed no crime.”; Also, See Deborah M. Mostaghel, ‘Wrongfully Incarcerated, Randomly Compensated - How to Fund Wrongful-Conviction Compensation Statutes’, Indiana Law Review, vol. 44:503, 2011, p. 5,10.
72 UNHRC, Communication No 1467/2006, UN Doc CCPR/C/98/D/1467/2006
Dumont, a Canadian national was wrongly convicted in sexual offense in 1992 and served 34 months in prison before he was released. His conviction was quashed and he was acquitted from the charge in 2001 by the Canadian Québec Court of Appeal. Canadian Federal/Provincial/Territorial Guidelines had some compensatory provisions for the wrongfully convicted individuals. However, Dumont was not entitled for the compensation even though appealing in various Canadian authorities. In 2010, He brought a claim to the United Nations Human Rights Committee accusing Canada violating its obligation to compensate him under Article 14, 6 of the ICCPR. The respondent Canadian government argued that the applicant had never been proven innocent of the crime in question and was thus not eligible for compensation because the victim in the offense had the doubt as to whether or not the applicant was the perpetrator, therefore the court concluded that the victim’s statements gave rise to a reasonable doubt in regards to his guilt leading to his acquittal, but the court did not rule on his innocence. The human rights committee in its opinion prescribed the Canadian government to provide an effective remedy to Dumont in the form of adequate compensation – as well as ensuring that “similar violations do not occur in future.” See para 25. Similarly, the committee required that the State party provide evidence about the measures taken within 180 days. See para 26.
73 Dushi, Desara, ‘Social Contract and the Government Legitimacy’, Mediterranean Journal of Social Sciences, Nov, 2015, p. 393.
74 Exoneration and Compensation for the Wrongly Convicted: Enhancing Procedural Justice? KATHRYN M. CAMPBELL, MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 3, p. 267.
75 Kerry M. Karaffa, Jaimie, and Julie M. Koch, Perceptions of Exonerees’ Compensating the Innocent:, Deservingness to Receive Financial Compensation for Wrongful Convictions , Criminal Justice Policy Review, SAGE Publications, published on 2015, p. 2., DOI: 10.1177/0887403415607049.
76 Alanna Trivelli, ‘Compensating the wrongfullt convicted: A proposal to make victims of wrongful incarceration whole again’, Richmond Journal of Law and the Public Interest, 2016, volume 9:3, p. 267, published on 2016, available at http://scholarship.richmond.edu/jolpi/vol19/iss3/7, accessed on 29 September 2021.
77 Ibid.
78 Ibid, p.270-271.
79 Ibid, p.281.
80 Campbell, Kathryn M. ‘Exoneration and Compensation for the Wrongly Convicted: Enhancing Procedural Justice?’ Manitoba Law Journal, Vol. 42, Issue 3, p. 255.
81 Ibid, p.254.
82 Scott Rodd, ‘What Do States Owe People Who are Wrongfully Convicted?’ Justice & Business of Government, Pew, Stateline, March 14, 2017.
83 International Covenant on Civil and Political Rights, art.9, para.5.
84 Ibid, art.14, para. 6.
85 Treaty Act of Nepal 2047(1990), p. 9.
86 Madan Narayan v. Office of PM and Council of Ministers and others, D. 10069, vol.8, 2075 In this writ, the applicant reported that he was a serious victim of wrongful Conviction. On date 2060-07-08, when the applicant was on duty in District Police Office, he was accused on the murder of Rita Lama Moktan. The District Court and Patan High Court convicted the applicant with life imprisonment but Supreme Court made him release on date 2076-01-1 because of which he filed the writ petition claiming to get back the job he was dispatched from and compensate his salary while he was in prison.
87 Govinda Mainali was wrongfully convicted in December 2000 in the offense of rape and murder of Yasuko Watanabe in March 8, 1997. Watanabe used to work by night as a prostitute and used to work by day as a respected economist for the Tokyo Electric Power Company. The dead body of Yasuko Watanabe was found on March 19, 1997 with strangled condition in an apartment, which she had used for her sexual liaisons. Mainali was an immigrant in Japan. He had been arrested on March 23, 1997 for over-staying his work visa. He used to live with his Nepali friends in an apartment of the building, where Watanabe was murdered. Mainali admitted to police investigators that he had payed Watanabe twice to have sex with him. But in connection to the offense, he said that he had not seen her for days prior to her rape and murder, and there were no witnesses to claim his statement otherwise. Mainali was charged with murder of Yasuko Watanabe. He was acquitted in April 2000 by the Tokyo District Court based on the judge's finding there was no credible evidence of his guilt. In December 2000 the Tokyo High Court reversed acquittal and sentenced him to life in prison. Japan's Supreme Court rejected his appeal on October 22, 2003. In March 2005 Mainali filed a new appeal seeking a retrial. But it was denied. On July 21, 2011 the Japanese newspaper Yomuiri Shimbun reported that the prosecution had secretly conducted DNA testing of crime scene evidence. DNA testing of semen recovered from Watanabe's vagina excluded Mainali as the source. Along with not matching the semen's DNA, the report also noted that the DNA of a pubic hair recovered from the crime scene, DNA of a blood stain on the Burberry coat worn by Watanabe, and DNA of saliva found on the victim's chest also excluded Mainali as the source. Five days later, on July 26, Mainali filed a petition for a retrial with the Tokyo High Court based on the fact that the prosecution had never disclosed that semen had been recovered, and that the prosecution's secret tests conclusively excluded him as the man who raped and murdered her. After the petition, prosecutors disclosed in September 2011 that Mainali's trial lawyers had not been provided evidence that his blood type B did not match the type O blood of saliva found on Watanabe's breast. Based on the new DNA and blood evidence the High Court set-aside Mainali's conviction and ordered a new trial on June 7, 2012. The presiding High Court Judge Shoji Ogawa stated, "Suspicion has arisen that another person might have murdered the woman and it is assumed a guilty ruling would not have been handed down if the results of this analysis had been presented in the trial." Mainali was released from prison about 3p.m. that same day and transferred to a detention facility, since he had overstayed his visa and thus was in Japan illegally. On June 16, 2012 Mainali was flown to Kathmandu, Nepal after spending 15 years in prison and being away from home for 18 years. On October 30, 2012 the Tokyo High Court declared after a retrial that Mainali was not guilty. Exoneration of "Govinda Mainali was abnormal in Japan, which has a 99.8% conviction rate. After the acquittal, he sought for 68 million Japanese ¥ ($790,000) for wrongly convicting and sentencing him. The Tokyo District Court endorsed paying about ¥68 million in compensation to him.” See: http://forejustice.org/db/Mainali--Govinda-Prasad-.html also, see: https://jiadep.org/Govinda.html.
88 Durga Prasad Subedi, a Nepali citizen from Illam spent 40 years of his life in prison without Fair Hearing who was wrongfully convicted for the case of murder. Chief Justice Prakash Srivastav and Rajashri Bhardwaj of West Bangal High Court has ordered West Bangal government to compensate IC 5 Lakh within 6 weeks of the order. See https://deshsanchar.com/2021/12/09/588131/ ?fbclid=IwAR3s5hV05ZvYPH5JXUaNesYyDu0WKI8C8BlITrgsitZjk5Pm49kP7_6Rhzg , accessed on 27 Mangsir.
89 Khul Bahadur Kunwar v. Police Special Court, NKP 2076, volume 4, DN 10250.
Khul Bahadur was imprisoned for 4 years without any crime commission, got out of jail and knew that another person Ghanshyam Adhikari was the main culprit. He after filed the case in the Supreme Court regarding his wrongful conviction.
90 Amrit Prasad Shrestha v. Office of PM and Council of Ministers, Writ. 079-WS-0076, D. 0006, NKP 2075, Vol. 1 Constitutional Bench. The writ petitioned was filed in Supreme Court of Nepal by the legal practitioners realizing unavailability of compensatory arrangements for the wrongly convicted victims. The petitioners demanded the compensatory statute and pleaded before the court to observe critically by making different institutions responsible such as the concerned investigating officer for malicious investigation, prosecutor for wrong accusation etc. Because of such circumstances the innocent person suffers from the violation of personal liberty, along with violation of social, economic, employment opportunities.
91 Som Prasad Luitel v. Office of PM and Council of Ministers and others, Writ. 072-WO-0285 In this writ, the applicant was accused for the Homicide case in 2067-02-03 got release after 32 months, 2 days spending time in prison who was not guilty but innocent and was under punishment because of wrong accusation and malicious investigation of the state for which the applicant issued a writ in Supreme Court.
92 Padammaya Gurung v. Office of PM and Council of Ministers and others, Writ. 071-WO-0512 In this case, Padammaya, the applicant was raped and got pregnant. She killed the baby subsequently after the birth and was convicted on the offense of Homicide and sentenced for 5 years of imprisonment by the Supreme Court of Nepal. The applicant was imprisoned from 2048-09-02 and was expected to get released on 2053-09-01. But she spent more time on prison for extra 5 years 6 months and 10 days and got released on 2059-03-11 because of negligence of the prison authority.
93 Madan Narayan v. Office of PM and Council of Ministers and others, D. 10069, vol.8, 2075 In this writ, the applicant reported that he was a serious victim of wrongful Conviction. On date 2060-07-08, when the applicant was on duty in District Police Office, he was accused on the murder of Rita Lama Moktan. The District Court and Patan High Court convicted the applicant with life imprisonment but Supreme Court made him release on date 2076-01-1 because of which he filed the writ petition claiming to get back the job he was dispatched from and compensate his salary while he was in prison.
94 Mijares Laura Patricia, Compensation for Wrongful Convictions: A study towards an effective regime of tort liability, thesis submitted to department of Law, University of Toronto, 2012.
95 Mostaghel (n 71).
96 Ibid, p.515.
97 Ibid, p.516.
98 Muluki criminal Code 2018, s. 99.
99 Ibid, s. 99(2).
100 Ibid, s. 99(3).
101 Mostaghel (n 71).
102 Ibid, p. 514.
103 Constitution of Nepal 2072(2015), art.133, art. 144.
104 Ibid, art. 21.
105 The Crime Victim Protection Act, 2075 (2018), s.2.
Clauses f, hand j of Section 2 of this act defines who are victims that are mainly the direct victims of crime as victim of first grade, the indirect victims (who are not involved in the offence but has to bear the damage) as victim of second grade and the family victims.
106 Constitution of Nepal 2072(2015), art. 46.
107 See Supra.75, p. 510.
108 Adele Bernhard, ‘When Justice Fails: Indemnification for Unjust Conviction’ (1999), Pace Law Faculty Publications, p. 93.
109 Ibid, p. 94.
110 Ibid.
111 Heneage Meridth J, ‘Rightful Compensation for a Wrongful Conviction: In Defense of a Compensation Statute in the State of Wyoming’, Wyoming Law Review, vol19, number 2, January 2019, p. 310.
112 Mostaghel (n 71).
113 Ibid. SEE: O’Neil v. State Case: In this case, O’Neil was convicted and sentenced by the Court for armed robbery. The actual perpetrator confessed after three and half years of O’Neil’s conviction. He then, claimed for compensation for wrongfully conviction but was disregarded by the Court of claim and it was dismissed. Observing this, Ohio General Assembly enacted special legislation. The legislation authorizes him to file a claim for loss of education, employment and general damages that compensated him $6,967. The amount compensated was not enough for the erroneous conviction so appeal was made on the fewer amounts where Ohio Court of Appeal made Court of claims to rethink on the judgment.
114 Adele Bernhard, ‘When Justice Fails: Indemnification for Unjust Conviction’ (1999), Pace Law Faculty Publications,, p.95.
115 Compensation Guidelines for Wrongful Conviction and Imprisonment, New Zealand, August 2020 New Zealand has adopted Compensation under Ex Gratia Payments for Persons who are wrongfully convicted by adopting Compensation Guidelines for Wrongful Conviction and Imprisonment that is forwarded to the Ministry of Justice which aims to vindicate innocent defendants and compensate reasonably for losses arising from wrongful conviction. On Point 30 of the guideline losses are compensable to the extend people are attributable to the applicant’s wrongful conviction and imprisonment and for the period following conviction. The compensation is provided on the losses that are recognized as pecuniary and non-pecuniary losses. On point 29, types of compensation are listed that in detail talks about how such exonerated people who suffered can be compensated in many circumstances.
116 Human Rights Act, 2004, Australian Capital Territory, Australia, sec-23 The Australian Capital Territory (ACT) has incorporated a rewarded version of Article 14(6) by adopting the ACT Legislation under the Human Rights Act 2004. Section 23 of Human Rights Act has a provision of Compensation for wrongful Conviction an individual has right to be compensated according to the law, when anyone is convicted by a final decision of a criminal offense and the person suffers punishment because of the conviction and the conviction is reversed or is pardoned on the ground that a newly discovered fact shows conclusively that there has been miscarriage of justice.
117 Compensation for Wrongfully Convicted and Imprisoned Persons 1988.
118 Compensation for Guidelines for Wrongful Conviction and Imprisonment. August 2020, Background and Purpose, pt.4. Nothing in the Guidelines requires the Government to agree to compensate a person in any particular case.
119 Nicola Southall, ‘Looking Backwards and Forwards: A Critique of New Zealand’s System for Compensating the Wrongly Convicted’, A dissertation submitted in partial fulfillment of the degree of Bachelor of Laws (with Honours) at the University of Otaga, October 2016, p. 6.
120 Hoel (n 10), p.2.
121 Michael O’Keeffe on the Submission to the Australian Productivity Commission Inquiry into Access to Justice, 4th Novermber, 2013, p.11.
122 Tom Percy QC, ‘Despised Outsiders Compensation for Wrongful Convictions’, p.1.
123 Villa, Rachel Dioso, ‘Out of Grace: Inequity in Post- Exoneration for Wrongful Conviction’, p. 359.
124 Hoel (n 10), p. 6.
125 Villa (n 123).
126 Myles (n 21).
127 Lonergan Jessica R., ‘Protecting the innocent: a model for comprehensive, individualized compensation of the exonerated’, Legislation and Public Policy, Vol 11:405d.
128 Bernhard Adele, ‘Justice Still F Justice Still Fails: A Re ails: A Review of Recent E view of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated’, Darke Law Review, vol.52,2004, p. 708-711.
129 Trivelli (n 76), p. 274.
130 Ibid.
131 Adele Bernhard, ‘Justice Still F Justice Still Fails: A Review of Recent view of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated’, Darke Law Review, vol.52, 2004, p.713.
132 Ibid.
133 Trivelli (n 129).
134 Ibid.
135 International Covenant on Civil and Political Rights 1966, art.14(6).
136 Ibid, p.102.
137 See ‘Causes of Wrongful Conviction’ discussed in this paper.
138 Pecuniary losses cover mostly the tangible or objective monitory losses. The economic losses including other comprises loss of investments and the value thereof, loss of business, loss of profit, and loss due to delay; Trivelli (n 76).
139 Non-pecuniary compensation attempts to recover the intangible or subjective losses. The non-pecuniary compensation comprises compensation from losses such as medical expenses and treatment, loss of earnings, impairment of earning capacity, loss of physical function, loss of services, education, aggravation of older mental or physical conditions, pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium, grief, humiliation and loss of favorable reputation. It also attempts to compensate past and future losses too. See Trivelli (n 76).
140 TEX. CIV. PRAC. & REM. CODE ANN. § 103.001, 103.052–.054 (West 2015)
Texas provides one of the most exemplary statutes, providing $80,000 per year of imprisonment with annuity, as well as additional of $25,000 per year on death row and registered as a sex offender. Also, awarding compensation of child support, 120 hours of tuition, opportunity to be a part of Texas State Employmee Health Plan and various other reintegration services is in this statute. SEE: Chunias, Jennifer L., Aufgang, Yael D. “Beyond Monetary Compensation: The Need for Comprehensive Services for the Wrongfully Convicted”, Vol. 28, Issue 1(2008), p.- 108 and, Lonergan, Jessica R. “Protecting the Innocent: A Model for Comprehensive, Individualized Compensation of the Exonerated”
141 VT. STAT. ANN. tit. 13, § 5574(b) (2) (Supp. 2007).
This state statute provides mental and physical health care by granting exonerate for upto 10 years of eligibility for the Vermont Health Access Plan. SEE: Chunias, Jennifer L., Aufgang, Yael D. “Beyond Monetary Compensation: The Need for Comprehensive Services for the Wrongfully Convicted”, Vol. 28, Issue 1(2008), p. 108.
142 MASS. GEN. LAWS ANN. ch. 258D, § 5(A).
Massachusetts’ statue encourages the court to grant orders entitling claiming to receive 50% discount on tuition fees at any of its state or community college, also in University of Massachusetts. Massachusetts’ statute permits the claimant to request a separate hearing for the expungement of records. Also, it provides assistance in applying for health insurance within 60 days of their scheduled release through Department of Correction’s Mass Health Initiative. See Chunias, Jennifer L., Aufgang, Yael D. “Beyond Monetary Compensation: The Need for Comprehensive Services for the Wrongfully Convicted”, 2008, vol. 28:1, p. 108; Jessica R. Lonergan, “Protecting the Innocent: A Model for Comprehensive, Individualized Compensation of the Exonerated”, volume 11:2, 2008.
143 MD. CODE ANN., STATE FIN. & PROC. § 10-501 (LexisNexis, 2015)
Maryland compensation scheme composes a reasonable monetary amount plus counseling services. Also, following benefits such as state identification card and other documents necessary for the individual’s health or welfare on the individuals release from confinement, health care and dental care for at least 5 years after the individuals release form confinement; Ibid Chunias, Aufgang & Yael.
144 Compensation Guidelines for Wrongful Conviction and Imprisonment, New Zealand, August 2020.
In the guidelines, the point 32 has a base rate that provides compensation for, a. Non-pecuniary losses, being: 1. Loss of liberty, 2.loss of reputation, 3. Loss or interruption of family or other personal relations, 4. Loss of interruption of school or study opportunities, 5. Mental or emotional harm and b. Pecuniary losses.
145 Compensation for Wrongfully Convicted and Imprisoned Persons.
The considerations for determining the quantum of compensation under the Guidelines include both non-pecuniary and pecuniary losses: (i) Non-pecuniary losses a) Loss of liberty and the physical and mental harshness and indignities of incarceration; b) loss of reputation which would take into account a consideration of any previous criminal record; c) loss or interruption of family or other personal relationships. (ii) Pecuniary Losses a) Loss of livelihood, including of earnings, with adjustments for income tax and for benefits received while incarcerated; b) loss of future earning abilities; c) loss of property or other consequential financial losses resulting from incarceration.
146 MONT. CODE ANN. §53-1-214 (2015): Montana offers only educational aid to victims of wrongful conviction.
147 The Vermont state of USA has provision for minimum 30,000USD to maximum 60,000 USD per year as compensation for each year of incarceration.)
148 Pora V. Attorney-General (Newzealand [2017] NZHC 2081;
“The timing and size of Pora's compensation award meant that impact of inflation was particularly acute, since 16 years had passed since the setting of the $100,000 benchmarks. The fact that the Guidelines did not expressly refer to inflation adjustment was not decisive. The $100,000 benchmark and the appropriate non-pecuniary loss figure should be interpreted as permitting adjustment where that was necessary to achieve the purpose of the Guidelines in a particular case.”
See also https://www.justice.govt.nz/assets/Documents/Publications/pora-inflation-adjustment-20171106-cabinet-paper.pdf.
149 Guidelines Compensation for Wrongfully Convicted and Imprisoned Persons, The procedure to the claim and implementation implies when an individual meets the eligibility criteria, the provincial and federal ministers responsible for criminal justice will undertake to have appoint either judicial or administrative inquiry that examines the matter of compensation. The provincial or federal governments would undertake to act on the report submitted by Commission of Inquiry. However the authors here believed that instead of appointing judicial and administrative inquiries separately in each cases, it would have far more certainty and uniformity if a dedicated mechanism is established to hear and adjudicate every claims of compensatory damages.
150 Compensation Guidelines for Wrongful Conviction and Imprisonment, August 2020, paras.11, 12.
Minister of Justice receives application regarding the claim of compensation, examines merits of those claims and determine the procedure to asses and decide the application. Similarly, in the application filed by the person who is convicted under military law, the Ministry of Defense takes the charge in application with consultation with Ministry of Justice and provides advice to the Government.
151 Criminal Justice Act 1988, Sec. 133 The Secretary of the State determines the right of compensation after the application of the compensation is lodged. The amount of it shall be assessed by assessor who is appointed by Secretary of State.
152 Revenue Tribunal Act, 2031(1974), This Act entails the provision on the establishment and formation of tribunal in Section 3(2) that says “Each Tribunal shall consists of following members appointed by the Government of Nepal who are Law Member, Revenue Member, Accounts Member..” with the qualifications that are further discussed in Section 4 of this Act.
153 Law Commission of India, 2018, ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’, Report No. 277, p. 85 available at https://lawcommissionofindia.nic.in/reports/Report277.pdf?fbclid=IwAR0qMbe8LcO2XuT6CyN3idfVcH2rhaWXrgKPJZpcIMNvyt0f2KX6x4jPj3o, accessed on 17 September 2021.
154 New Hampshire Revised Statute (2010), New Hampshire, United States of America, Chap.541-B: 13.
155 North Carolina General Statute, New Hampshire, United States of America, ss. 148-84.
156 National Penal Code 2074(2017), s.48.
157 The Criminal Offence (Sentencing and Execution) Act, 2074 (2017), s.48.
158 The Victim Protection Act 2(d), s.29.
159 National Penal Code 2074(2017), s.48(3).
160 Mostaghel (n 71).161 Ibid. See also the fact that California mandated that all costs associated with representing inmates pursuant to Penal Code section 1405 to investigate and, if appropriate, file motions for DNA testing of biological evidence where such testing could prove innocence, be borne by the State. In that same year, California allocated $1.6 million dollars over two years to provide counsel to assist inmates with innocence claims. For 2002 and 2003, the NCIP [Northern California Innocence Project] and CIP [California Innocence Project] received state funding. That funding was discontinued as a result of state budget cuts in 2003.
162 Ibid.
163 Trivelli (n 76).
164 Mostaghel (n 71).