COMPENSATION FOR ARBITRARY DETENTION OR ARBITRARY CONDEMNATION IN THE FOREIGN LAWS

Abstract

Paper analyses methods of compensations for arbitrary detention or wrong conviction in certain laws of Common Law and Civil Law legal systems. It finds that in the states following the Common Law legal tradition, a priority had been placed on the constitutional character of the right to freedom and security, while granting the right to compensation to the person, affected by arbitrary restraint or wrong conviction, at least ex gratia was provided, unless there is an legal option available to hold state accountable for that damage. However, according to the international standards, states more and more frequently commit themselves to compensations, through the adoption of laws and regulations, when it comes to the violations of constitutionally guaranteed citizen rights that might be somehow related to the omissions of public bodies in performance of their duties.

In the legal system of continental Europe, or in other words in the Civil law system, the right to comepnsation in favour of the wrongly convicted person is based on the Constitution, while it is further specified through the general provisions of civil laws or through criminal procedure provisions. It is compensatory in its nature, while it appears that it gradually acquires a punitive character. Despite the differences in applicable mechanisms, their key common feature lays in the fact that the right to compensation in all these cases should redress violations of the right to freedom guaranteed by both constitution and international acts.