Article 28 of the Constitution of the Republic of Korea prescribes that in a case where a criminal suspect or an accused person who has been placed under detention is not indicted as provided by the relevant law or is acquitted by a court, he/she shall be entitled to make a claim against the State for just compensation under the conditions set out by the law. To materialize the right to criminal compensation, the Criminal Compensation Act was enacted on August 13, 1958, and revised afterward to ease the compensation criteria and expand the subject of claim. Further, in 2008 as the court found an offender under the National Security Act not guilty in a retrial case and the court has quashed the previous convictions and found the accused/criminals not guilty in more and more cases of retrial caused by the decision on unconstitutionality of the Constitutional Court since 2009, claims for criminal compensation have exploded, resulting in considerable scholarly attention to the role of criminal compensation system. In this course, various issues have become identified in the practical aspects of the system. Consequently, the Act was revised on May 23, 2011 in its entirety and entitled the Act on Criminal Compensation and Restoration of Impaired Reputation.
The revised Act 2011 raised the lower limit of the amount of indemnity for the retrial cases in which a new verdict of not-guilty is made in criminal procedure. It also extended both the statutory limitation of claim for criminal compensation and the scope of application for revision of the judgment. In addition, the Act newly established a system for restoration of impaired reputation to improve the previous scheme in which recovering reputation damaged in the course of criminal investigation and proceedings used to be difficult even when the persons received a verdict of ‘not guilty’ in retrial due to lack of proper report and public attention. Under this system, new verdicts of not-guilty are notified in the webpage of the Ministry of Justice, officially. Despite such efforts, however, the current system is criticized for its efficiency in practice while discussion has not been made fully on this subject. Therefore, this paper examines the relevant legislation in other countries to compare them to our own and makes suggestions to improve our system by analyzing the issues found in the operation of the criminal compensation system in Korea.
In the United Kingdom, criminal compensation system is significant in that it used to be an ‘ex gratia scheme’, as the matter was at a total discretion of the Home Secretary, but developed into a systematic legal framework as a new provision was made in the Criminal Justice Act in 1988. Through this development, the nature of criminal compensation shifted from ethical to legal and the claimants’ rights were strengthened along with more clearly defined qualification and process of the system. The country was now equipped with a system according with the international legal standards which it ratified. Unfortunately, however, criminal compensation pursuant to the Criminal Justice Act has not been well enough in practice, as there are not many applicants who wish to benefit using this system and the success rate is relatively low. Thus, insufficient number of successful applicants and meager amount of compensation are often pointed out as the main problems. It is most likely due to the passive attitude of the government or criminal justice authorities toward criminal compensation scheme. In fact, in 2014 the British government established a new provision in the Criminal Justice Act, which interprets the conditions of compensation more narrowly and the actual cases that applicants receive the compensation decision through judicial review turn out to be extremely rare. In the United States, federal legislation stipulated provisions concerning compensation for miscarriage of justice in 1938, but it was only after late 1980s when an acquittal of the guilty was made by the court based on DNA evidence that the compensation system began to receive nationwide attention. Since then, a growing number of states have provided criminal compensation laws and as of 2016 the compensation scheme is being enforced in 30 states, including Washington D.C. and the federal legislation. Nevertheless, the rest of 20 states still do not have a similar legal mechanism and therefore the claimants should rely on private compensation bill or civil suits against the state, in which cases the success rate is meager. Moreover, even in the states where compensation legislation is prepared, the system is criticized as the qualification criteria are generally too strict or the amount of compensation is capped to a minimum level. Further, while the legal community often accepted the retrial cases in which a new verdict of not-guilty is made based on DNA evidence, in reality it takes average 2.8 years for a successful claimant to receive the court-awarded payment. Meanwhile, one salient feature in the US criminal compensation scheme is that several states, including Louisiana, Massachusetts, Texas and Vermont, provide rehabilitation service to the successful claimants, in addition to monetary compensation. For example, some states provide job placement service or training, support for education in either the state or vocational colleges, or medical service and consultation. The service of this kind helps reintegration of the claimants into society beyond economic indemnity for the miscarriage of justice and wrongful imprisonment those claimants have suffered, which gives a valuable insight to our system in the criminal justice policy perspectives.
In sum, criminal compensation system in the UK and the US has developed only recently and the operation is relatively limited compared to that of continental Law system, such as in Germany, France, Japan and Korea. It is because while in the continental laws’s inquisitorial justice system the rights of the accused tend to be suppressed during legal proceedings to find substantive truth and thus, the convict who are found not-guilty later in retrial should be compensated, in adversarial justice system in the common law countries, such as the UK and the US, sufficient protection is provided to the accused for their rights during legal proceedings and thus criminal compensation in later time when their previous convictions are quashed are deemed meaningless. Even so, as the public interest in the wrongfully convicted grows significantly, both the UK and the US reorganize and improve the existing criminal compensation system.
In German Criminal Compensation Law, distinctive characteristic is that the state’s obligation to provide compensation(die obligatorische Entschädigungspflicht des Staates) and discretionary equity compensation(die fakultative Billigkeitsentschädigung).
In addition, under the current Criminal Compensation Act (StrEG), unlike in the past, compensation for the suspect is available if reasonableness is accepted by the court, and for deprivation of freedom(detention), the law prescribes that both economic and non-economic damages can be compensated completely.
In addition, the German system includes in the object of compensation not only compulsory disposition on the body of the accused, such as emergency arrest or execution of arrest warrants, but also search and seizure, suspension of driver‘s licence, and employment restriction, which is insightful to us. In the meantime, the German law specifies that not the Criminal Compensation Law but the regulations that used be in force in East Germany apply to the guilty verdicts by the criminal court, security dispositions, or various criminal sanctions made under the ex-East German regime before the reunification of the two Germany. It can be some guideline to us, who still have the historic and national task of reunification between the North and the South Korea.
In France, it is noticeable that compensation for the wrongfully convicted persons is widely accepted by the state for their material damages due to unjust imprisonment. Not only the claimants’ income and opportunity costs, and legal fee, but also moving expenses and transportation expenses that the spouses incur to visit the claimants are recognized as the object of compensation by the decision of the National Commission for the Compensation of Detention under the Court of Cassation. It would give our courts some insights to improve our system. Meanwhile, in France, notification of judgment of acquittal is prescribed by law, which is similar to our ‘restoration of impaired reputation’ system. Upon the claimants’ requests, the court makes an order of public announcement of retrial results and then the notice can published in the newspapers and in various places. It is different from the Korean system, in which the courts and the prosecution have a separate way and authority to make such announcement and the prosecution, in particular, use the Ministry of Justice′s internet homepage to announce the verdicts of retrials. The most distinctive feature in the French notification system is that the law prescribes that the legal rights to claim criminal compensation be notified to the persons receive the disposition of non-prosecution and verdict of not guilty. The French example that the legal device is well prepared to facilitate the victims of miscarriage of justice to claim their rights to criminal compensation can be a meaningful reference to our discussion to improve the system in Korea in future.
As for the Criminal Compensation Act in Korea and in Japan, since ours is modeled on the Japanese law, the criminal compensation systems themselves are almost alike. Nevertheless, there exists a considerable difference in operational aspect to the extent that in Korea the claimants who filed for compensation based on the Constitutional Court of Korea’s decision of unconstitutionality were as many as 3,600 in 2014, while in Japan few people uses the system. As for compensation for the suspect, in Korea the Criminal Compensation Act provides the legal basis to the matter as well, in Japan, the Regulations for Suspect’s Compensation, that is, the directives of the Ministry of Justice deals with the matter. In addition, in Korea, the successful claimants who receive a new verdict of not-guilty from the court should request the prosecution pay the compensation, but in Japan, those claimants make the payment request to the court which makes the decision of not-guilty and orders compensation directly. Overall, the process appears to be simpler in Japan.
Moreover, according to Japanese law, once compensation is decided for a claimant, depending on the claimant’s request the court decision should be publicly announced within two months. In comparison, in Korea, the law prescribes that once compensation is decided for a claimant, a public notice should be made within two weeks to restore the impaired reputation of the claimant. The Japanese system seems to protect the rights of the claimants more carefully. Further, it is characteristic that the Japan’s Criminal Compensation Act includes the provisions concerning extradition of criminals and transfer of sentenced persons, which can be a reference point to us when we seeks improvement of Korea’s criminal compensation system and the relevant legislation.
Criminal compensation under the current Criminal Compensation Act is carried out first by the compensation claim of the claimant to the courts, the court’s review and decision, and in the case where the court decides to quash the previous verdict on the claimant and to compensate him/her, the successful claimant’s request to the prosecution for payment awards. This paper has examined the status of claims application and the court’s handling the cases, as well as the status of payment awards by the prosecution. First, for the last 10 years, the claim application to the courts for compensation increased by 41.4 times in 2010 over the previous year, reflecting the marked increase of the people who received verdicts of not-guilty between 2010 and 2012, and continued to increase until 2012. The rate of compensation request in proportion to the persons found not-guilty in retrial was between 3% to 7% before 2010, but since then it gradually grew recording 53.4% in 2010 and reached 80.7% in 2013. The number of court’s processing of the criminal compensation cases in 2010 were 38 times more than the previous year and continued to increase until 2012 by more than twice in each passing year. Except the cases rejected by the court completely, the acceptance rates of claims for criminal compensation of the last 10 years are over 80%. The reason that the number of claim application and the court processing increased rapidly is that the Constitutional Court found the joint penal provisions to be unconstitutional in many cases and the courts quashed previous convictions and made new verdicts of not-guilty in many retrial cases. It is reflected on the status of criminal compensation processing and decision per charge in each level and branch of the courts for the last five years. It has been found that in the district courts criminal compensation involving the Road Traffic Act accounts for the majority, of which the rate of compensation award decision in proportion to the processed cases was, in all branches, over 99%. In the high courts level, many claims the courts reviewed have involved retrial of the Martial Law Act, the National Security Act, high treason, and the Presidential Emergency Measures and the rate of compensation award decision has been high, as well.
The number of cases that criminal compensation is paid out by the prosecution is similar to the court’s processing and acceptance rate of the claims. In detail, the number of payment cases by the prosecution increased explosively in 2010, marking 23.9 times more than the previous year, and continued to increase until 2012, by over twice in each passing year. Unlike the number of payment cases, the payment amount had not been changed significantly until 2011, but from 2011 to 2012 it increased by 2.4 times, and from 2013 and 2014 by 1.6 times. Further, while the cases of payment started to decrease from 2013, the amount of payment continuously increased until 2014. The state of criminal compensation payment is influenced by the Constitutional Court’s decision of unconstitutionality about the joint penal provisions, as mentioned earlier, as well as the new not-guilty verdict made in retrials. Generally, the trends in the changes in the payment state correspond to the payment state to the wrongfully accused in retrial cases. In other words, if we look at the payment state of the last five years, in compensation for the accused as a total, the ratio of the retrial cases is much higher than the ratio of the detention cases. Here, the number of compensation payment decided in retrial constitutes 96.4% to 99.1% of the total claim application, and the payment amount constitutes 83.1% to 99.1%.
The number of payment awards about criminal court cost in the cases with new not-guilty verdicts increased by three times in 2012 over 2011, and by 2.3 times in 2014 over 2013, and the payment amount increased by 2.5 times in 2012 and by three times in 2013 over the previous years respectively. However, unlike the number of payment awards, which hit a record high in 2014, the payment amount has decreased since 2015 after it recorded the highest in 2013. In the meantime, in the case of suspect compensation(any person that intends to claim suspect compensation shall file such claim with not the courts but the Suspect Compensation Deliberation Council under the district prosecutors’ office to which the prosecutor who exercised non-indictment dispositions belongs), the number of payment awards for the last five years were not more than 20 per year and the amount of payment was 30 to 40 million Won(KRW).
In the court’s decisions to pay criminal compensation and payment cases, this paper has analyzed the criminal event of each criminal compensation case, the scope of the criminal compensation and expense compensation, and the processing time from the decision to the payment through the court rulings for interests of delayed payment in criminal compensation and the records of the relevant lawsuits. The analysis has resulted in the following uation and characteristics of the criminal compensation cases.
First, most of the criminal cases in criminal compensation awards are retrial cases involving violation of the Presidential Emergency Measures, the National Security Act, and the Anti-Communist Act, where not-guilty verdict is made by the courts. The convicted in these cases were found not guilty in retrials as the courts found that their previous confession of crime commission to be a forced one based on torture or inhuman treatment during investigation and that their appeals were rejected in every case. The days of imprisonment including both pre-trial detention and execution of sentence were from 1,367 days at the shortest to 5,388 days at the longest. Therefore, criminal compensation system for such retrial cases is significant in that the state indemnifies the victims of miscarriage of justice and the criminal justice organization repents of its own wrongdoings on the innocent.
Secondly, the courts generally decides the amount of payment to be five times as much as the minimum daily wage determined by law and this is the largest amount available with in the limits set out by the relevant legislation. For instance, in 2013, which constitutes the majority of the ‘year in which the grounds for claiming the compensation have taken place’, the minimum wage set by the law was 38,880 Won per day and therefore the lower limit of the compensation was 38,880 Won per day and the upper limit was 194,000 Won per day, which is five times more than the daily minimum wage. Then, the courts multiplied this amount of 194,000 Won by the number of days that the claimant was in prison to calculate the amount of compensation. The manner of the courts’ calculating the compensation amount appears to result from their judgment that violation of both the due process and the basic human rights was widespread in the past through illegal arrests and detention, torture and cruel treatment on the suspects in retrial cases.
Thirdly, through analyzing the average processing time from claim to decision spent in the courts, and that in the relevant prosecutors’ offices, certain degrees of delay has been found in each case. As for the courts’ handling of the matter, there is no regulatory rule that sets out the time limit to make a decision for compensation and therefore the process of the matter completely depends on the court in charge of the retrial. In addition, in criminal compensation cases, transfer of the case records from the prosecution to the courts tends to be impeded by various issues, resulting in a delay in processing. Therefore, it is necessary that the courts regulate the time limit for decision even in an internal level and improve the transfer procedure of the case records between the courts and the prosecution. As for the prosecution’s handling of the matter, chronic deficit in budget has been confirmed as the main cause of delay in compensation payment. Because if the Supreme Court upholds the lower court’s decision of interest awards in delayed payment of compensation, the Ministry of Justice will take the responsibility of paying the interests in delay, affirmative efforts to secure budget is required. For this purpose, the legislature could consider to set up a time limit for compensation payment in the relevant legislation, thereby creating a certain degree of compulsory measures to security of budget. In addition, this paper has discovered that despite delayed payment, neither the claimants themselves nor their attornies could easily obtain information as to whether the payment is in fact being delayed, and if so, the reason and the expected time of payment etc. To resolve these issues, it is necessary to promote the ‘search on criminal compensation payment’ function in Korea Information System of Criminal Justice Services (KICS), the criminal justice portal. This system has been operated by the prosecution for a while but public awareness and use is poor. To improve the process, for instance, by publicizing the ‘search on criminal compensation payment’ system and preparing a notice system using SMS would be useful.
Finally, from November 2011 when the publication system of written verdict of not-guilty took effect up to the present, the number of request to make public notice and the actual announcement made is extremely low with only one case in 2011, five in 2012, and about 50 since 2013, signifying that the utilization rate is poor. It has been found that the reason is a lack of publicity or public promotion about the system itself. In other words, the prosecution has no ground rules applicable to notice or information of the public notification system in relation to the verdict of not-guilty and tends to be indifferent publicity activities on this matter. The court do not notify or provide information on the not-guilty verdicts, although they mail information brochure to the claimants when their innocence is confirmed. Therefore, in order to raise the usage rate of the publication system, it is necessary for both the courts and the prosecution to prepare notice or guidance process for the successful claimants. In this regards, this study suggests to set up a new regulation of notice that both the intent and the content of criminal compensation system are announced in the notice for the persons who satisfy the conditions of criminal compensation and thus have a right to claim compensation payment. Namely, when a not-guilty verdict is made either in the ordinary procedure, retrial or extraordinary appeal procedure in accordance with the Criminal Procedure Act, if the defendant undergoes pre-trial detention, at the time of court’s judgement the justice mentions the availability of criminal compensation. Given that, when the verdict is confirmed by the court, it should again notify the successful claimant of his/her right to claim compensation for the wrongful detention and the detailed contents of the compensation process. Further, in the event that a not-guilty verdict is made in an appeal after the recovery of the right to appeal, retrial or extraordinary appeal procedure, if the defensant was detained or the sentence was executed against him/her, the justice should notify the claimants of the facts and contents about his/her right to claim compensation for the detention or execution of a sentence.
Meanwhile, as a method to speed up the criminal compensation cases in court, it can be considered that the justice who makes a not-guilty verdict in retrial makes a decision regarding criminal compensation as well. The revision of law in this manner would resolve most of inefficiency issues caused by the current notice scheme, and the dual system between the claim application and the payment awards. Moreover, in that payment should be made in a timely manner in order to utilize the rights to criminal compensation properly, this paper suggests a new provision be established in the relevant legislation that sets out both a time limit for compensation payment following the request by a successful claimant and interest award in delayed payment as inducement to promote criminal compensation system.