Studying other legal systems enables us to look back and clearly assess what is wrong with our own system. When I first started working for the Innocence Project Northwest last year, I was shocked to learn that the State of Washington has no law that ensures compensation to the wrongfully convicted (read the details here). In fact, many of the states in the US still have no compensation law (read the details here).
What about other countries? Here is the situation in Japan.
The Constitution of Japan (which was drafted after the WWII under the US occupation) states in Article 40: ” Any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law“. It ensures one the right to sue the State to get compensation in case he was wrongfully arrested or detained. In response to this Article, the Criminal Compensation Act (1950) specifies the details of the compensation.
Article 4 of the Act provides that the amount of compensation given will be decided by the court. The court shall set the rate of compensation by considering how the person was detained, the length of detention, the person’s loss of property, physical and mental pain he/ she had to suffer, and negligence by the police and prosecutors. The minimum daily rate is 1,000 yen (12.5 USD) per day he/ she was detained, and the maximum is 12,500 yen (about 155 USD). See the table below for the amount given to exonerees in past cases.
The wrongfully arrested/ detained can also file a lawsuit against the State under the State Redress Act (Act No. 125 of 1947). However, to win the lawsuit, the plaintiff must prove that “a public officer who exercises the public authority of the State or of a
public entity has, in the course of his/her duties, unlawfully inflicted damage
on another person intentionally or negligently” (Art. 1 of the Redress Act. Emphasis added. Translation by Japanese Law Translation).
It is extremly hard to prove the intention or negligence of the public officer since the State has all the evidence about the case, and the lawsuit takes a lot of time and resources. Only about 6% of the lawsuits under the Redress Act end in favor of the plaintiff. This system needs much reform.
So how much compensation will Govinda Mainali (recent exoneree) get for his 15 years of detention? Here’s an article by Daily Yomiuri Online.
From Daily Yomiuri Online.
Excerpt: Chihiro Iwasaki and Kotaro Kodama / Yomiuri Shimbun Staff Writers
Compensation for Mainali
Mainali was in prison for 15 years, so what compensation should he receive?
Under the Criminal Compensation Law, he is entitled to compensation based on the number of days he spent in detention. This works out to about 68 million yen, according to a rough calculation.
In addition, Mainali could also ask for state compensation by filing suit.
The latest suit of this type was filed by Atsuko Muraki, 56, a bureau chief at the Health, Labor and Welfare Ministry, whose not guilty ruling came after Osaka prosecutors were found to have tampered with evidence. She was awarded about 37.7 million yen after the government accepted her demand in its entirety in October last year.
However, this is an exceptional case.
In a state compensation suit in the murder in 1990 of the wife of a Hirosaki University professor, in which the defendant was declared not guilty in a retrial, the
Supreme Court turned down a special appeal. In this case, the top court said, “Indictment and maintenance of its position in court trial by the prosecution are not illegal when suspicions existed in light of rational judgment.”
Even if Mainali filed a state compensation suit, observers say the hurdle he would have to clear would be very high as the prosecution currently does not admit any failure in its investigation and trial process.