NGOs under European Convention on Human Rights / Tymofeyeva

2.15 Right to compensation for wrongful conviction (Article 3 of Protocol No. 7) Article 3 – Compensation for wrongful conviction

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non disclosure of the unknown fact in time is wholly or partly attributable to him. Article 3 of Protocol No. 7 envisages that the person who was sentenced but had his or her sentence reversed or has been pardoned on conditions noted above has a right to compensation according to the law or practice of the member state concerned. The expression “the practice of the State concerned” is of an unclear meaning and unfortunately the Explanatory Report 1263 does not contain any explanation in this respect. In paragraph 25, it only states that the compensation is payable even if the law or practice makes no provision for such reimbursement. The main intention of the provision is that states compensate persons only in clear cases of miscarriage of justice in the sense that there would be acknowledgement that the person concerned was clearly innocent. Adversely, this provision is not intended to give a right of compensation where all preconditions are not satisfied, 1264 for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge. As to the case-law of the Court, the author was not able to find any judgment where it was ruled that there had been a breach of Article 3 of Protocol No. 7 in regard to the Article 34 NGO. 1265 However, in one case, the Court was not far from that conclusion. In the case of Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands , 1266 dated 1 October 2002, the applicant companies, Marpa Zeeland B. V. and Metal Welding Service B.V., both limited liability companies, complained that they were not awarded any compensation despite the fact that they were the victims of a miscarriage of justice and invoked Article 3 of Protocol No. 7. The Court did not find that these complaints were inconsistent with the applicant status under the Convention. It only noted that Protocol No. 7 has not been ratified by the Netherlands and therefore this part of the application was incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention. The author agrees with the conclusion of the Court. She is, however, of the opinion that it would be better to use the formulation ‘incompatible ratione personae’ as it was not a question of material rights set forth in the Convention, but the issue of the 1263 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 117), paras 22-25. 1264 HARRIS, 2009, cited above, p. 780. 1265 Data valid on 21 June 2015. 1266 Marpa Zeeland B.V. and Metal Welding B.V., cited above.

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