CYIL Vol. 4, 2013

SOME GUARANTEES REGARDING CRIMINAL PROCEEDINGS APPLICABLE … proceedings in question and could not claim to be a victim of a violation of the rights envisaged in the European convention. 6. Right to compensation for wrongful conviction (Article 3 of Protocol No. 7) ARTICLE 3 – Compensation for wrongful conviction 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 the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. Article 3 of Protocol No. 7 envisages that the person who was sentenced and his or her sentence was reversed, or when he or she has been pardoned on the conditions noted above, has a right to compensation according to the law or practice of the member state concerned. The expression “the practice of the State concerned” is of unclear meaning, and unfortunately the Explanatory Report 50 does not contain any explanation in this respect. In paragraph 25 it only states that the compensation is payable even if the law or practice makes no provision for such reimbursement. The main intention of the provision is that states compensate persons only in clear cases of miscarriage of justice in the sense that there would be acknowledgement that the person concerned was clearly innocent. Adversely, this provision is not intended to give a right to compensation where all the preconditions are not satisfied – for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge. As to the case law of the Court, the author was not able to find any judgment where it was ruled that there had been a breach of Article 3 of Protocol No. 7 as regards an NGO. However, in one case the European Court was not far from that conclusion. In its decision in the case of Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands 51 dated 1 October 2002, the applicant companies, Marpa Zeeland B.V. and Metal Welding Service B.V., both limited liability companies complained that they were not awarded any compensation, despite the fact that they were the victims of miscarriage of justice, invoking also Article 3 of Protocol No. 7. The Court did not find that these complaints were inconsistent with the applicant’s status under the Convention. It only noted that Protocol No. 7 has not been ratified by the Netherlands, and therefore this part of the application was incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention. The author agrees with the conclusion of the Court. She is, however, of the opinion that it would be better to use the formulation “incompatible 50 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 117), paras 22-25. Available at http://conventions.coe.int/Treaty/EN/Reports/Html/117.htm. 51 Marpa Zeeland B.V. and MetalWelding B.V. v. the Netherlands , No. 46300/99, ECHR 2004-X (extracts).