When an individual is found guilty of a crime and there is the assignment of punishment, the individual in question then has the right to compensation should there be the emergence of evidence which proves the individual innocent.147 The award of
compensation due to a miscarriage of justice is a concept largely accepted in international human rights law, as shown in article 8 of the UDHR, which places emphasis on establishing an efficient solution. Furthermore, through article 9 of the ICCPR, the right to compensation is maintained, with the statement made that ‘anyone who has been the victim of unlawful arrest or detention shall have an enforceable right
145 Al-Adel Journal (Muharram 1426 (2005). 146 Court of Appeal decision, 287, 5/11/1392 (1972). 147
140 to compensation’. However, it seems that this right has been violated in many countries.148 Moreover, article 14(1) and (2) of the CAT also highlights that the victims
of torture have the right to compensation, although this right may apply to the pre-trial stage, it has the same meaning as article 9 of the ICCPR. Nevertheless, the right to compensation has been regarded in Islamic law as well as within the KSA. Importantly, the following discussion examines the Islamic notion of the right to compensation, and then the legal system within the KSA, with a comparison drawn at the end.
10.2.1 Islamic law
Importantly, there are three different types of damages that may be incurred following a miscarriage of justice: incorporeal damages, corporeal damages and financial damages.149 Jurists agree with the notion that the judge has no responsibility for any
verdict made unless he is found to have deliberately delivered an incorrect judgment. It is pertinent to highlight that Islamic jurisprudence acknowledges compensation, although the concept must be defined and distinguished as being separate from ‘Diya’, which is money needing to be paid to a victim’s family.150
However, scholars in Islamic law have agreed that the right to compensation started from the principle of Islam which states that the tort has to be removed or ‘Al darrar yoza’l’.151
The methods of compensation for miscarriage of justice can be divided into two, both giving the victim money. Firstly, the days he remained in prison or in detention are counted and he is awarded money for the number of days.152 The second method is what
can be defined as an evaluation of the time he spent in the detention or in prison.153
However, the person who has the right to award the compensation in Islamic law is the judge or anyone who has been given the permission from the judge to award the compensation.154
148
Joseph, Schulz and Castan (n 59) 456.
149 Al-Eshaikh (n 46) 345.
150 Zuhair Al-Harthi, ‘The Role of the Commission for Investigation and Public Prosecution and Its
Impact on the Criminal Procedure in the Saudi Criminal Justice System’ (PhD thesis, University of Kent 2005) 31.
151 Ibn qudamah, Al mugni, 429/7, and Jawahir al Ikleel, Imam Malik, 151/2. 152 Mohammed al-Ramli, Nihayat al Muhtaj fe Sharh al minhag, 5/71. 153 Ibn qudamah ‘al mughni’ (Dar Al-hiya Alturath al Arabi 1985) 429/7. 154
141 10.2.2 Saudi Arabia
From a domestic standpoint, the right to compensation has been maintained and detailed in article 20 of the LCP, which highlights that the individual accused, who may have experienced harm as a result of wrongful accusations or who may have been imprisoned as a result of such, is entitled to compensation. Furthermore, in the same article, it is also noted that moral and material compensation should be paid when there is an acquittal judgment pursuant to petition, so as to ensure the damage suffered is mitigated.155 In the Law of Procedure Before Sharia Courts, the only reference to
compensation is in article 80, which is codified under the title ‘urgent requests’. This right allows the defendant to apply for compensation during the trial if he has proven that his right has been breached; however, it is for the court to accept or reject his request.156
In addition, if one of the methods of reconsideration is utilized by the appellant and it is subsequently found that there was, in fact, a miscarriage of justice, both financial and moral compensation should be awarded in consideration of the damage suffered by the appellant. In this regard, it is important to provide a distinction between the two different phases of compensation, which is fundamental in terms of jurisdiction: 1. Firstly, during the pre-trial phase, should abuse of process occur, the victim has
the right to claim compensation by communicating to the court or challenging the abuse in the in-trial stage.
2. Secondly, during the in-trial phase, should abuse of process occur, the accused is not able to make a claim to the Board of Grievances owing to the fact that such an action would stand in contradiction to article 14 of its Law, which entered into force in 2008. This article explicitly prohibits the Board of Grievances courts from handling or governing cases from either the General Court or the High Judicial Council: ‘it is illegal for the Board of Grievances to accept or rule any objections which has been published by the courts or under its jurisdiction nor the verdicts from the High Judicial Council’.157
10.2.3 Comparison
155 LCP, art 217.
156 Law of Procedure Before Sharia Courts, art 180 and the Regulatory Schedule, 1/180. 157
142 It is clear that the right to compensation as a result of a miscarriage of justice is recognized in international human rights standards. In the case of Saudi Arabia, this right has been constitutionally recognized by virtue of article 18 of the BLG which provides the right to compensation. However, in the domestic context, the distinction between the right to compensation in the pre-trial stage is a little vague when compared with the procedure for this right in the international human rights standards. Moreover, it seems that the law within the KSA has some issues relating to the concept of compensation: as has been seen, there is an overlap between the compensation which the accused claims against the other party, and the compensation claimed against the court itself.158
The two systems derive their norms from different sources, as has been shown through Chapter Two; however, there is an apparent similarity between the Islamic concept and the practice of compensation with the international human rights concept of compensation which, in the case of Saudi Arabia, does not reflect in terms of its domestic law. This may be problematic as, when comparing the standards of international human rights with the Saudi legal system, the implementation of such remedies are not organized into one clear and enforceable law. On the other hand, when going back to the root source from which Saudi Arabia takes its law, which is, in this case, Shariah law, we see that the image is clearly compatible with international human rights standards. This may possibly indicate poor performance, or a lack of implementation, of the law within the legal system of Saudi Arabia.
11. Conclusion
By examining human rights throughout the in-trial phase, it has been observed that, in theory, such rights have been guaranteed, although Saudi legislature has gone further by legitimizing this right in the BLG, which may be regarded as the constitution of Saudi Arabia. Furthermore, judicial independence becomes problematic when it comes to judges’ appointment and removal, which may have been solved by the Judiciary Law promulgated in 2008, which refers to the High Judicial Council appointing the judges. The public hearing, as one of the in-trial human rights elements, has become a controversy when it comes to the accused in crimes related to national security. In
158 See Regulatory Scheduled of the Law of Procedure Before Sharia Courts, arts 173-174. To obtain an
English version of the law and its regulatory schedules, Saudi Arabia Ministry of Justice <http://www.moj.gov.sa/ar-sa/Pages/judgment_systems.aspx> accessed 12.March.2013.
143 addition, presentation during trial has taken many steps further, although in some cases the accused may be deprived of his right to a legal representative. Nevertheless, according to the NSHR—as well as BIPP reports—the implementation of the right of the accused to have a legal representative has improved dramatically during the last decade.
The equality of arms has also been regarded as one of the significant aspects inherent in Shariah law; this area has been stipulated in many articles within the law of the KSA, such as through the LCP as well as the Judiciary Law, and most significantly, the BLG (which as stated above is widely recognized as the constitution of Saudi Arabia).
Nevertheless, various issues can be problematic in regard to the accused’s rights to be tried without undue delay. It has been observed that many complaints have been submitted domestically to the NSHR or in the international sphere through the UN, as well as published in the media, relating to being held without trial or, in the in-trial stage, deprived of the right to trial within a reasonable time. Although the accused has the right to receive compensation, there is no explanation to illustrate why or on what legal basis the delayed has occurred. Such breaches are in contrast with the international human rights instruments sanctioned by the KSA, as well as the conventions such as the ACHR. Moreover, some cases presented in this chapter show that the right to appeal to a higher tribunal has been guaranteed in the post-trial phase.
144