The price of freedom

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Published in IBA

Unfair detention can occur for a variety of reasons.

For example, it can take place because an error was made in the procedure, but also because a person is acquitted after being held in pre-trial detention. In these cases, despite the fact that there has been no negligent or intentional misconduct in terms of the administration of justice, the state’s liability arises from the fact that a person was deprived of a right they should not have been deprived of in the first place. Although no harmonised regulation exists at a European Union level, most Member States have compensation schemes in place for unjustified detention.

In a recent judgment, dated 19 June 2019, the Spanish Constitutional Court amended the wording of article 294 of the Judiciary Act (LOPJ), which establishes the right to compensation in cases of unjustified pre-trial detention, leading to a major change in the grounds for claiming compensation. This judgment presented the opportunity to reflect on compensation schemes in force in other EU Member States, taking into account the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR).

This article first appeared on the website of the Criminal Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.

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