Original scientific paper
The Right to Damages for Wrongful Conviction or Unjustified Arrest or Detention and its Regulation in Constitutional and Criminal Law
Davor Krapac
; Constitutional Court of the Republic of Croatia, Zagreb, Croatia; Faculty of Law, University of Zagreb, Zagreb, Croatia
Snježana Bagić
; Constitutional Court of the Republic of Croatia, Zagreb, Croatia
Abstract
The paper deals with the right to compensation for wrongful conviction or unjustified arrest as a subjective right deriving from the responsibility of the state for such damage under modern civil law, developed in the late 19th century. Today it has been incorporated into many legislations and, by being constitutionalized, often elevated to an individual constitutional right. After outlining the position of that right in international law on human rights, especially in the convention law of the Council of Europe, the practice of the European Court for Human Rights and Croatian constitutional law, the authors write at length about the legal assumptions for compensation for wrongful conviction or unfounded arrest in Chapter XXX of the Croatian Criminal Procedure Act. Individual questions concerning the so-called positive and negative assumptions for compensation are dealt with by means of standard methods of legal interpretation and illustrated by examples from cases in which the Constitutional Court of the Republic of Croatia was deciding on constitutional complaints against the decisions of regular courts in compensation claim proceedings and examples of judicial reviews of the Supreme Court of the Republic of Croatia.
The authors conclude that the judicial mechanisms of supervision of the execution of the right to compensation for wrongful conviction or unfounded arrest, including the mechanisms of the Constitutional Court, despite initial doubts about interpreting “unfounded” conviction (or arrest) as merely “unlawful” or as “unfair”, which were solved in favour of the latter, have considerably extended its scope and turned it into a special category of responsibility of the state for the work of its bodies and agencies, which is different from the general rules of its responsibility for their errors. They have thus contributed to the protection of personal freedom, which, without such guarantees, is at risk of being a proclamation without practical significance.
Keywords
criminal law; unfounded conviction for a criminal offence; unfounded arrest; compensation for damage
Hrčak ID:
100033
URI
Publication date:
28.12.2012.
Visits: 4.075 *