Ex­perts call for com­pen­sa­tion shake-up

Although more mis­car­riages of jus­tice are be­ing over­turned than ever be­fore, le­gal professionals say the sums awarded for the men­tal an­guish en­dured as a re­sult of wrong­ful im­pris­on­ment are in­ad­e­quate, as re­ports.

China Daily (Hong Kong) - - CHINA -

In June, six months af­ter their con­vic­tions for rob­bery, rape and mur­der were quashed on ap­peal, four men from Jiangxi prov­ince claimed State com­pen­sa­tion for their wrong­ful con­vic­tion and im­pris­on­ment 13 years ago.

Three of the men have ap­plied to the pro­vin­cial high peo­ple’s court for com­pen­sa­tion amount­ing to more than 20 mil­lion yuan ($2.9 mil­lion) each, in­clud­ing 12 mil­lion yuan each for the psy­cho­log­i­cal trauma they ex­pe­ri­enced. The fourth man has ap­plied to the pro­vin­cial peo­ple’s procu­ra­torate, but de­tails of his claim are not known.

In April, the Supreme Peo­ple’s Court, the na­tion’s top ju­di­cial body, is­sued guide­lines to su­per­vise pro­ce­dures when courts han­dle claims for State com­pen­sa­tion, say­ing the reg­u­lated process is a key step in the im­ple­men­ta­tion of rule of law and the pro­tec­tion of hu­man rights.

Tao Kaiyuan, vice-pres­i­dent of the top court, called on courts at all lev­els to im­prove the qual­ity of case hear­ings to pre­vent flawed judg­ments, and or­dered them to im­prove trans­parency in the pro­ce­dures for han­dling ap­pli­ca­tions.

Ac­cord­ing to the ex­perts, a num­ber of prob­lems, such as the rel­a­tively low sums awarded and im­pre­cise def­i­ni­tions of men­tal tor­ment, must be re­solved as quickly as pos­si­ble.

Since the re­vi­sion of the State Com­pen­sa­tion Law in 2010, peo­ple sub­ject to mis­car­riages of jus­tice have been able to ap­ply for com­pen­sa­tion for psy­cho­log­i­cal trauma.

How­ever, many ques­tions re­main, such as how men­tal an­guish can be quan­ti­fied, and how to nar­row the gap be­tween com­pen­sa­tion paid for wrong­ful im­pris­on­ment and for men­tal an­guish.

“It’s pleas­ing to see com­pen­sa­tion awards ris­ing, and that our in­creas­ing ef­forts to reg­u­late crim­i­nal pro­ce­dures in re­cent years have helped to over­turn many wrong­ful con­vic­tions. How­ever, the de­vel­op­ments haven’t gone far enough,” said Zhang Xue­feng, a lawyer in Bei­jing.

Un­der Chi­nese law, the sums awarded as com­pen­sa­tion for men­tal an­guish are based on how much peo­ple have re­ceived for wrong­ful im­pris­on­ment or phys­i­cal in­juries sus­tained.

“That means rais­ing the lat­ter will be use­ful in im­prov­ing the amounts paid for psy­cho­log­i­cal dam­age,” Zhang said.

Wang Wan­qiong, a lawyer from Sichuan prov­ince, rep­re­sented Chen Man, whose con­vic­tion was over­turned last year. She was op­ti­mistic about the pos­si­bil­ity of higher lev­els of com­pen­sa­tion, but sug­gested that a wider range of items be added to com­pen­sa­tion lists, such as ex­penses in­curred dur­ing the ap­peal process, to bal­ance the lower sums awarded for men­tal an­guish.

Com­pen­sa­tion rises

Since 2012, when China’s cur­rent ad­min­is­tra­tion as­sumed power, the courts have over­turned 34 mis­car­riages of jus­tice.

Chen was awarded 2.75 mil­lion yuan af­ter spend­ing nearly 24 years in prison, hav­ing been de­tained in 1992, be­fore be­ing wrong­fully con­victed of mur­der and ar­son in 1994.

“Ini­tially, we asked for com­pen­sa­tion of more than 9.66 mil­lion yuan, but the sum we fi­nally re­ceived was not as much as we ex­pected,” Wang said. “The ma­jor part of the award was for more than two decades of wrong­ful im­pris­on­ment.”

Last year, the daily pay­ment for wrong­ful im­pris­on­ment was cal­cu­lated in line with av­er­age earn­ings in 2015.

How­ever, in May, the Supreme Peo­ple’s Court is­sued the lat­est stan­dard, which states that com­pen­sa­tion will now be set at a fixed daily rate of 258.89 yuan.

“Ten years ago, the fig­ure was about 80 yuan,” Wang said, not­ing that although daily com­pen­sa­tion rates have risen ev­ery year, the process has been too slow.

“The courts now have a clear for­mula to use, so it’s eas­ier for them to agree com­pen­sa­tion for wrong­ful im­pris­on­ment,” she said, adding that daily com­pen­sa­tion lev­els should be tai­lored to in­di­vid­ual cir­cum­stances.

“Af­ter all, the salaries of civil ser­vants or busi­ness ex­ec­u­tives sub­ject to mis­car­riages of jus­tice are very dif­fer­ent to those of reg­u­lar work­ers,” she noted.

A ma­jor devel­op­ment

Ac­cord­ing to Zhang, the lawyer in Bei­jing, the greater avail­abil­ity of com­pen­sa­tion for psy­cho­log­i­cal trauma is a ma­jor ju­di­cial devel­op­ment.

“It is the high­light of the re­vised law, be­cause it in­di­cates how the far the sit­u­a­tion has pro­gressed. Com­pen­sa­tion for men­tal an­guish is not only a com­fort to the ap­pli­cants and their fam­i­lies, but also an apol­ogy from the na­tion for mis­takes made by the ju­di­cial sys­tem,” he said.

Le­gal in­ter­pre­ta­tions of the re­vised State Com­pen­sa­tion Law sug­gest that pay­ments for psy­cho­log­i­cal trauma should not ex­ceed 35 per­cent of the com­pen­sa­tion paid for wrong­ful de­ten­tion.

In re­cent years, one of the most-pub­li­cized mis­car­riages of jus­tice was that of Nie Shu­bin, who was ex­e­cuted in 1995 af­ter be­ing con­victed of rape and mur­der. In De­cem­ber, his con­vic­tion was over­turned by the Supreme Peo­ple’s Court and his fam­ily was awarded 1.3 mil­lion yuan, the high­est sum paid as com­pen­sa­tion for men­tal trauma in China.

By con­trast, Qian Ren­feng, who spent 14 years in prison af­ter be­ing wrong­fully con­victed of killing a child with poi­son, re­ceived 500,000 yuan.

“Ap­ply­ing for com­pen­sa­tion for men­tal suf­fer­ing is like bar­gain­ing in a mar­ket,” said Yang Zhu, Qian’s lawyer. “In some cases, awards for men­tal an­guish are ar­ranged pri­vately be­tween the courts and at­tor­neys, which I don’t think is sen­si­ble or good for ap­pli­cants,” he said.

Chen re­ceived 900,000 yuan for the psy­cho­log­i­cal trauma he ex­pe­ri­enced.

“The award ac­counted for al­most 50 per­cent of the sum he re­ceived for wrong­ful de­ten­tion,” Wang said.

Both Wang and Yang be­lieve it would be im­prac­ti­cal to draw a clear line.

“Dur­ing the ap­pli­ca­tion process, it is dif­fi­cult to as­sess how much men­tal trauma an ap­pli­cant has suf­fered. So it’s not suit­able to award com­pen­sa­tion sim­ply as a re­flec­tion of the time and ef­fort a lawyer has spent on the case,” Yang said.

He sug­gested that com­pen­sa­tion for psy­cho­log­i­cal trauma could be im­proved by rais­ing the amount paid in daily com­pen­sa­tion, and that di­ver­si­fy­ing the range of items for which peo­ple can be com­pen­sated would be a prac­ti­cal way of pro­vid­ing more money for men­tal trauma awards.

Cul­pa­bil­ity

Cheng Lei, an as­so­ciate pro­fes­sor of law at Ren­min Univer­sity of China, is en­cour­aged by the rise in the num­ber of flawed con­vic­tions that have been over­turned in re­cent years.

But a gap still ex­ists be­tween the amounts claimed and the sums awarded, and it will not be nar­rowed any­time soon, ac­cord­ing to Cheng.

He be­lieves China should fol­low the ex­am­ple of the United States, where ap­pli­cants are al­lowed to sue in­di­vid­u­als and de­part­ments re­spon­si­ble for mis­car­riages of jus­tice.

“Iden­ti­fy­ing in­di­vid­u­als and de­part­ments and then ini­ti­at­ing law­suits may be a more ef­fec­tive method, be­cause in the US com­pen­sa­tion awards in com­mon law­suits are usu­ally higher than those for claims against the state,” he said.

Zhang said some items in­clud-

CASES COM­PEN­SA­TION The av­er­age com­pen­sa­tion paid for each day spent in prison as a re­sult of a wrong­ful con­vic­tion.

young man from the In­ner Mon­go­lia au­ton­o­mous re­gion who was wrong­fully con­victed and ex­e­cuted for rape and mur­der in 1996, was awarded more than 2 mil­lion yuan ($295,000) in 2014, in­clud­ing 1 mil­lion yuan for their men­tal suf­fer­ing.

Sichuan prov­ince, who spent nearly 24 years in jail af­ter be­ing wrong­fully con­victed of homi­cide and ar­son, was awarded 2.75 mil­lion yuan, in­clud­ing 900,000 yuan for men­tal an­guish.

32, from Yun­nan prov­ince, won com­pen­sa­tion of 1.72 mil­lion yuan — 500,000 yuan for men­tal an­guish — af­ter be­ing

ed in ap­pli­ca­tions, such as travel and ho­tel ex­penses, are not ac­cepted by cer­tain courts, which in­di­cates a lack of clear le­gal reg­u­la­tion, in­di­cat­ing that the law should be im­proved.

The cul­pa­bil­ity of the ju­di­ciary and the po­lice in mis­car­riages of jus­tice also needs to be ur­gently ad­dressed, he said.

Ac­cord­ing to Yang, the prob­lem lies in in­cor­rect im­ple­men­ta­tion of the reg­u­la­tions. “The law clearly states that lawyers and court of­fi­cials who con­trib­ute to mis­car­riages of jus­tice should be held re­spon­si­ble, but it is ex­tremely dif­fi­cult to do that in prac­tice,” he said.

“Hold­ing in­di­vid­u­als to ac­count for their mis­takes would be an im­por­tant way of en­sur­ing that jus­tice is done, and in pro­mot­ing the rule of law,” he added.

“Know­ing that they could shoul­der the blame would en­sure that of­fi­cials do their jobs to the best of their abil­i­ties and would also help to avoid mis­car­riages of jus­tice.”

Con­tact the writer at caoyin@chi­nadaily.com.cn

CHI TU / FOR CHINA DAILY

The fam­ily and friends of Nie Shu­bin, who was ex­e­cuted in 1995, at his grave­side the day af­ter his con­vic­tion for rape and mur­der was quashed by an ap­peal court.

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