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Hussain PreTrialDetentionCompensation 2018
Hussain PreTrialDetentionCompensation 2018
Author(s): Tauqeer HussainSource: Policy Perspectives , Vol. 15, No. 3 (2018), pp. 47-66
Published by: Pluto Journals
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Abstract
Right to liberty is considered a basic human right and the pre-trial detention
curtails this right before the guilt is proven. Pre-trial is authorized by international
and domestic legal regimes as an unavoidable measure but with certain
precautions. Subsequent to pre-trial detention, international human rights law is
silent about compensating those who were falsely or mistakenly held by state
authorities. Certain states have recently realized the need of a compensation
mechanism. In Pakistan, the criminal procedure warrants certain precautions and
allows a form of compensation for pre-trial detention, yet the law lacks in certain
respects. Exploring evolution of the realization to compensate for the
apprehension before conviction, this paper looks for the convergence and
divergence of Pakistani and contemporary legislation on the issue of pre-trial
detention and its compensation. The paper suggests reforms through minimal use
of pre-trial detention and by providing compensation to the innocent victims of
pre-trial detention.
Introduction
Research Officer, Institute of Policy Studies, Islamabad. The author is particularly
thankful to Khalid Rahman Director General, and Syed Nadeem Farhat Senior Research
Officer, Institute of Policy Studies for their valuable inputs during the course of writing
this paper.
1
For instance, see Articles 3 & 9 of Universal Declaration of Human Rights, 1948,
Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), 1966,
Article 6 of African Charter on Human and Peoples’ Rights, 1981, Article 5 of European
Convention on Human Rights, 1950, Article 7 of American Convention on Human
Rights, 1969, Article 21 of the constitution of India 1950, and Article 9 of the
Constitution of Pakistan, 1973.
2
Centre for Human Rights Geneva and Crimes prevention and Criminal Justice Branch,
Professional Training Series No. 3_ Human Rights and Pre-trial Detention: A handbook
of international standards relating to Pre-trial detention, (New York and Geneva:
United Nation, 1994), pp 14-15.
[47]
3
Black’s Law Dictionary defines arrest as “1. a seizure or forcible restraint. 2. the
taking or keeping of a person in custody by legal authority, esp. in response to a
criminal charge; specif., the apprehension of someone for the purpose of securing the
administration of the law, esp. of bringing that person before a court”. It defines
detention as: “the act or fact of holding a person in custody; confinement or
compulsory delay”. Henry Campbell, Black’s Law Dictionary, Brayan A. Garner, ed.,
(West Group, 2004)
4
Open Society Justice Initiative, Pre-trial Detention and Torture: Why pre-trial
detainees face the greatest risk (New York: Open Society Foundations, 2011), p. 53.
However, UN Human Rights Committee stated about the time limit of pre-trial
detention as “detention between the time of arrest of an accused and the time of
conclusion of trial in shape of judgment at first instance”. See UN Human Rights
Committee, General Comment No. 35: Article 9 (Liberty and security of person) of
International Covenant on Civil and Political Rights (United Nation: December 2014),
paragraph 37, accessed on September 08, 2015,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=C
CPR/C/GC/35&Lang=en.
5
Amnesty International, Justice Under Trial: A Study of Pre-trial Detention in India,
Amnesty International, India, 2017, Accessed on September 25, 2017,
https://www.amnesty.nl/content/uploads/2017/07/UT_Final.pdf?x79902.
6
Rule 6 of United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo
Rules), 1990
7
UN Human Rights Committee, General Comment No. 35, paragraph 38.
8
Centre for Human Rights Geneva, Human Rights and Pre-trial Detention, New York
and Geneva: United Nation, 1994, p. iii.
[48]
trial detention has got a big irony attached to it; it is a penalty without
being convicted.
9
Adnan Prince vs. State PLD 2017 Supreme Court 147
[49]
With the better and effective police and judicial system, the
frequency and volume of this problem can be mitigated, however it
cannot be completely done away with. The phenomenon of pre-trial
detention exists even in developed societies and states of the world. 12
The problem, however, increases manifold in countries where law and
order situation, poverty, transparency, accountability and institutional
strength remain major problems. For instance, the figures of some Asian
countries show this fact as under:
10
Open Society Justice Initiative, Presumption of guilt: The Global Overuse of Pre-trial
Detention, (New York: Open Society Foundation, 2015), p. 262
11
Ibid., p. 269
12
Institute for Criminal Policy Research, “Highest to Lowest- Pre-trial
Detainees/Remand Prisoners, Entire world”, World Prison Brief, accessed on
September 04, 2018, http://www.prisonstudies.org/highest-to-lowest/pre-trial-
detainees?field_region_taxonomy_tid=All
13
Institute for Criminal Policy Research, “Highest to Lowest-Pre-trial
Detainees/Remand Prisoners, Asia”, World Prison Brief, accessed on September 04,
[50]
2018, http://www.prisonstudies.org/highest-to-lowest/pre-trial-detainees?field_
region_taxonomy_tid=16.
14
Institute for criminal policy research, “Pre-trial/Remand Prison Population: Trend,
Pakistan”, World Prison Brief, Accessed on September 04, 2018,
http://www.prisonstudies.org/country/pakistan.
15
NACTA, ICRC & CODE, Addressing Overcrowding in Prisons by Reducing Pre-
conviction Detention in Pakistan, May 2018, p. 8.
16
Law & Justice Commission of Pakistan, Performance Statistics: jail Inmates,
Accessed on August 15, 2018, http://ljcp.gov.pk/nljcp/assets/dist/news_pdf/ji.pdf.
17
NACTA, Addressing Overcrowding in Prisons, May 2018, p. 8.
18
ibid
19
United Nations, Human Rights Committee, Concluding observations on the initial
report of Pakistan, July 28, 2017, paragraphs 27 & 28, accessed on September 20,
2017,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=C
CPR%2fC%2fPAK%2fCO%2f1&Lang=en
[51]
Despite this lack of attention towards the plight of those who are
suffering on account of some suspicion, malicious, frivolous or even
mistakenly initiated litigation, no conscious society can completely ignore
this anguish.
Due to high reverence to the right of liberty on one hand, and the
widespread and overuse of pre-trial detention in many states on the
other, the pre-trial detention has become a global concern and several
international legal standards and interpretive materials have emerged to
regulate the use of pre-trial detention and to protect the rights of pre-
trial detainees.21 According to these International legal standards, the
pre-trial detention can be exercised or employed only as a last resort in
criminal proceedings.22 The international law provides that “no one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such ground and in accordance with such procedure
as are established by law”.23
20
Open Society, Presumption of guilt, 2015, p. 269.
21
For instance, See Centre for Human Rights Geneva, Human Rights and Pre-trial
Detention, 1994. The same is referred as ‘Handbook of International Standards relating
to Pre-trial Detention’.
22
Rule 6.1 of Tokyo Rules,1990
23
Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), 1966
24
Centre for Human Rights Geneva, Human Rights and Pre-trial Detention, 1994, p.17
[52]
25
UN Human Rights Committee, General Comment No. 35, paragraph 38.
26
See Rules 1.5, 6.1 and 6.2 of Tokyo Rules, 1990
27
The term ‘compensation’ is understood to mean a “specific form of reparation
seeking to provide economic or monetary awards for certain losses, be they of material
or immaterial, of pecuniary or non-pecuniary nature”. See also, International
Commission of Jurists, The Right to a Remedy to Reparation for Gross Human Rights
Violations: A Practitioners’ Guide, (Colombia: Ediciones Anthropos, Bogota, June
2007), p.123
28
For instance, see Principle 20 of Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian law, 2005; Principle 35 of
Body of Principles for the Protection of All Persons under Any Form of detention or
Imprisonment, 1988.
29
For Example, see Principles 18, 19, 21 and 22 of Basic Principles and Guidelines on
the Right to a Remedy and Reparation, 2005.
[53]
30
Article 85 (1) of Rome Statute of the International Criminal Court (ICC), 1998.
31
The Prosecutor vs. Andre´ Rwamakuba, Case No. ICTR-98-44C-T, Decision on
Appropriate Remedy, (January31, 2007), the same decision was held by appeal
chamber on September 13, 2007.
32
Article 5(5) of the European Convention on Human Rights, (ECHR), 1950.
33
Article 16 of the Arab Charter on Human Rights, 1994
34
Article 10 of American Convention on Human Rights, (ACHR), 1969.
35
International Commission of Jurists, the Right to a Remedy to Reparation, June
2007, p.125.
36
Article 2(3) (a) of International Covenant on Civil and Political Rights, 1966.
[54]
37
Ibid.
38
International Commission of Jurists, the Right to a Remedy to Reparation, June
2007, pp.125-126
39
Amongst the countries that provide compensation to the acquitted accused are
Norway, Germany Sweden, Austria, Denmark, Netherlands, Italy, Iceland and Latvia,
see John David Michels, “Compensating Acquitted Defendants for Detention before
International criminal Courts”, Journal of International Criminal Justice, (May 2010),
Volume 8, Issue 2, pp. 407-424.
40
Gabriel Domenech-pascual & Miguel Puchades- Navarro, “Compensating acquitted
pre-trial detainees”, International Review of Law and Economics, Volume 43, 2015,
accessed on October 17, 2016,
https://www.uv.es/gadopas/2013.Compensating.acquitted.pretrial.detainees.pdf.
41
Ibid
[55]
42
The Law Commission of India, Government of India, Report No. 277: Wrongful
Prosecution (Miscarriage of Justice): Legal Remedies, August 2018, Accessed on
September 04, 2018,
https://drive.google.com/file/d/1eXWmWBGFGsfbzKqB8ymfOayxxlWvOk5C/view.
43
The bill was introduced by Senator Azam Khan Swati on August 21, 2017, Accessed
on September 04, 2018,
http://www.senate.gov.pk/uploads/documents/1503334797_194.pdf.
44
NACTA, Addressing Overcrowding in Prisons, May 2018, p. 8.
45
For instance, sections 169, 426, 496, 497 and 498 of Code of Criminal Procedure
(CrPC), 1898.
[56]
46
See Section 4(1)(f) of CrPC, 1898.
47
See Section 4(1)(n) of CrPC, 1898
48
Abdul Qayyum Vs. S.H.O Police Station Shalimar, Lahore, 1993 P.Cr.L.J. 91
49
Mazharuddin Vs. State 1998 P.Cr.L.J 1035
50
Muhammad Mazhar Hassan Nizami, The Code of Criminal Procedure with
Commentary, (Lahore: PLD Publishers, 2009), p. 53
51
Article 10(2) of the Constitution of Pakistan states that “Every person who is arrested
and detained in custody shall be produced before a magistrate within a period of
twenty-four hours of such arrest”.
52
Section 61 of CrPC, 1898
53
Article 10 (3) and 10(9) of the Constitution
54
Section 167(1) and (2) of CrPC,1898
[57]
55
State vs Ubaid Ullah 2005 MLD 1883
56
Section 344 of CrPC, 1898
57
Muhammad Hussain vs State PLD 1959 (W.P.) Lahore 322
58
Sections 426 (1A) and 497 (1) of CrPC, (Act No. VIII of 2011), 1898
59
Section 497(1) of CrPC,1898
[58]
On the conclusion of trial or appeal, when the court decides a case, apart
from those who are condemned to a sentence, a good number of the
accused either escape punishment on the pretext of benefit of doubt or
are honorably acquitted. A convict, if sentenced with imprisonment, can
be compensated under the law against his pre-trial detention through
reimbursement or settlement in the total period of imprisonment
awarded.61 Even those sentenced with life imprisonment for murder can
avail such benefit.62 Conversely, the one who is found innocent, finds no
compensation for the misery, loss of liberty and integrity, likely loss of
health, job and even job prospects. What the family had suffered and
would further suffer is another part of the story.
The High Courts, in many cases of illegal and unlawful arrest and
detention by police, have invoked writ jurisdiction to grant relief to the
victims of illegal or unlawful detention in shape of compensation. For
instance, Sindh High Court has held in one such case: “Apart from a civil
action to tort to recover compensation for unlawful detention or malicious
prosecution, our legal system has always recognized the concept of
instant compensation to the victim without having resort to separate
legal proceedings. Sections 35-A and 95, C.P.C. speak of compensatory
costs for vexatious proceedings and compensation for expense or injury
to the victim of arrest or attachment effected on insufficient grounds.
Section 250 of the CrPC enables a Magistrate to award compensation to
the extent of Rs.25, 000 to person charged on the basis of a false
accusation upon his acquittal. Such compensation is in addition to and
not in derogation of any civil or criminal liability, which the wrongdoer
might have incurred”.63
60
Senate of Pakistan, Criminal Laws (Amendment) Act 2016, January 18, 2016,
Accessed on September 04,2018,
http://www.senate.gov.pk/uploads/documents/1457510265_924.pdf.
61
Section 382-B of CrPC, 1898
62
Ramazan vs State PLD 1992 Supreme Court 11
63
Mazharuddin vs State 1998 P.Cr.L.J 1035
[59]
police officers present in the court are liable to compensate the three
persons. The persons who remained in illegal police custody are entitled
to Rs. 5,000 each for every day they remained in the custody from both
the police officers. The conduct of the police officers is against the public
policy and we direct that they may be immediately removed from the
post of S.H.O. and S.I.O. and in future they may not be assigned any
field posting at least for the next three years”.64
64
Mst. Afsana versus District Police Officer, (Operation), Khairpur 2007 YLR 1618
65
Ibid.
66
For example, Province of Sindh vs. Roshan Deen PLD 2008 Supreme Court 132, Riaz
Ahmad vs. I.G of Police 2006 MLD 1093, Syed Hassan Ali Shah vs. SHO, Police Station
Dadu PLD 2006 Karachi 425 and Mazharuddin vs State 1998 P.Cr.L.J 1035
67
Section 250 of CrPC as amended through the Cost of Litigation Act 2017 on May 27,
2017.
68
Section 250 (2) of CrPC, 1898.
[60]
in the sense that it does not consider the situation when a person is
suspected and arrested by the police on its own motion by virtue of any
suspicion etc. Besides, it has no consideration of pre-trial detention which
is a separate factor apart from false and frivolous or vexatious
accusations.
Summing up
69
For instance, section 2(27) of the General Clauses Act 1956 states that “a thing shall
be deemed to be done in good faith where it is in fact done honestly, whether it is done
negligently or not”.
[61]
Recommendations
[62]
[63]
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[65]
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[66]