Article 84 [53(8) and 50]
· Recommendation: The right to compensation in the wake of arrest or detention which violates the statute or internationally recognized human rights standards, or a miscarriage of justice, should be retained.
Comment: Article 84 of the current draft makes appropriate provision for compensation of the accused in the event of wrongful arrest or a miscarriage of justice.72 The right of the accused to compensation in these circumstances is enshrined in broadly ratified human rights instruments.
Article 9(5) of the International Covenant on Civil and Political Rights (ICCPR), provides: "Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation." Article 14 of the ICCPR provides that: "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 law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."73
If the ICC were to fall short of these well-established standards, its legitimacy and its credibility would be undermined. While details regarding compensation could be set out in the Rules of Procedure of the Court, the principle for the statute should reflect the above provision. Delegates should ensure that the currentlybracketed text dealing with the right to compensation for accused persons is retained in the final version of the ICC statute.
72 This right to compensation should be reflected in the wording of Article 60(9) [53(8)] of the draft statute which provides that where the Presidency or Pre-trial Chamber decides that an arrest or detention was unlawful, the Presidency "may award compensation [emphasis added]." The language should be imperative, providing that compensation will be provided in these circumstances.
73 Consistent with our recommendations in the section dealing with "applicable law", the reference to "in accordance with law" would refer to the statute and, in this case, the Rules of the Court, as well as relevant international law.
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