These guidelines bring considerations for the question of ruling on expenses. For example: where the prosecution acted maliciously or without a reasonable cause; Where the defendant by his conduct has suspected himself or led the prosecution to believe, mistakenly, that his guilt is more serious than it really was; where there is sufficient evidence of a conviction but the acquittal was due to procedural reasons; where a defendant is acquitted of one charge but charged with another, the court is given discretion as to whether to indemnify him for some of the expenses he has incurred. See also: The Sabah case [15],
at pp. 659-660; the Michaelshvili case [2], at p. 655; the Gabbay case [17], at p. 43. These guidelines have been amended and changed from time to time. See, for example, the following directives issued by Lord Lane, C.J.: [1981] 1 W.L.R. 1383, [1981] 3 All E.R. 703; [1982] 1 W.L.R. 1447, [1982] 3 All E.R. 1152; [1989] 2 All E.R. 604; [1991] 2 All E.R. 924, [1991] 1 W.L.R. 498. The authority to award costs is also given in cases where the prosecution has decided not to continue the proceeding or withdrew the indictment. For the law and the current guidelines, see J.F. Archbold Criminal Pleading, Evidence and Practice [46], §6.3 ff..
We will give our opinion and remember that the provisions of the law in English law entitle a defendant who is acquitted only of the costs of the trial and not of compensation for his arrest. See more J. Caplan “Compensation for Wrongful Imprisonment” [49].
- In Australia, guiding principles were established in the Latoudis v. Casey (1990) [34]. Here, too, as in English law, it is only a matter of reimbursement of expenses to the defendant who is acquitted. In the Judgment-Opinions have been voiced in different opinions, but the general tendency is, subject to exceptions, in favor of a defendant who is entitled to reimbursement of expenses incurred in order to defend himself in the criminal trial.
- The expansion trend is shared by other countries. Thus, for example, in German law (section 467 of the Criminal Procedure Law, the- (StPO It was held that upon the acquittal of a defendant, a ruling should be made in his favor – and the state's obligation – for the reimbursement of expenses that he met. In that place, exceptions to the rule were also determined: the defendant incriminated himself or did not refute the accusations leveled against him and did not refute the basis of facts that spoke against him; when the credit is a technical credit; Where the defendant maintained the right to remain silent only partially, thus prolonging the proceedings against him. German law also establishes an arrangement for the payment of compensation for pre-trial detention to a defendant who is acquitted or to a defendant against whom the proceedings have not been concluded (section 2 of the Law on Compensation for Actions of the Criminal Prosecution,-StrEG). As provided in section 5 of the same law, damages shall not be awarded when it has been applied
in the proceeding, or the proceeding continued and went on, due to the defendant's behavior. According to section 6 of the same law, the court can refuse to award compensation when the defendant incriminated himself or the acquittal was a technical acquittal.
- In France (Article 149 of the Code of Criminal Procedure:-Code de Procídure Pinale) an arrangement was established according to which a defendant who is entitled to compensation due to temporary detention can (détention provisoire). A defendant who was acquitted did not initially receive compensation unless the arrest caused him "extraordinary and extremely severe" harm and injustice.“cette détention lui a causé un préjudice manifestement anormal et d’une particulière gravité”). However, in the amendment of June 15, 2000, this condition was omitted, and today a house is authorized-A trial to award compensation for arrest, but only for this reason that the defendant is acquitted. As for the expenses, these expenses will probably not be awarded even in the acquittal of a defendant, but they can be sued from the complainant who acted indefinitely-32 (Section 472 of the Code of Criminal Procedure).
- The law is different in the countries-The Covenant, whose tendency is not to charge the state for the expenses of a defendant who is acquitted. See, for example L. DiBartolomeo “Sovereign Immunity Bars the Exercise of Supervisory Power for Fee-Shifting Against the Federal Government - United States v. Horn 29 F. 3d [50]754”. In-At the same time, in certain cases, the state will be obligated to-This is at the expense of a defendant who was acquitted. Thus, for example, in 1997, Congress enacted a law at the federal level, according to which the state will bear the expenses of a defendant who is acquitted if it is proven that the indictment was filed at home-The trial is easy-knowledge, teasing or lack of innocence-32, but-If-He also found a home for him-The sentence that an expense ruling will not be just: 18 U.S.C. 3006A.
- A similar law prevails in Canada, According to him, as a rule, no compensation and expenses are awarded to a defendant who is acquitted. See: R.S. Reid, P.T. Burns “The Power to Award Costs in Criminal Cases or How Judicial Illusions Remain Illusions None The Less” [51]. This rule has required itself to be criticized, and an opinion has been expressed that an arrangement should be adopted whereby the violation of the basic rights of the individual will be expressed by way of granting the right to compensation and expenses. See
A Proposal for Costs in Criminal Cases (Law Reform Commission, Canada, 1973). - As for international law, we will mention the-The Law of a House-European Human Rights Law in the Sekanina v. Austria (1993) [35]. In this case, a certain person was charged with murder
His wife, and after he was acquitted, he asked the state to pay his legal expenses and compensation for spending a year in detention. The Austrian court rejected the request, ruling that the suspicion against a certain person remained. The man filed a complaint with the European Court, and the Court ruled that the denial of compensation and expenses in these circumstances violates the presumption of innocence set forth in Article 6(2) of the European Convention on Human Rights [54], which is therefore an unlawful denial. Once it has determined that the defendant is innocent of the crime against him, the court must not use evidence to contradict the presumption of innocence (ibid. [35], at p. 235). For an approach that also brings into the list of considerations the nature of the acquittal as a reason for denying the ruling of expenses in favor of the defendant, see Leutscher v. Netherlands (1996) [36]. However, we were of the opinion that the European Court did not rule that by virtue of the Convention itself, a defendant who is entitled to compensation for his arrest is entitled to compensation, since this matter is left to the court of each and every State: Masson and Van Zon v. Netherlands (1996) [37], at pp. 510-511. The committee before the tribunal further determined that there is nothing wrong with denying compensation and expenses to a defendant who is acquitted where this denial relies on his conduct and does not constitute a punishment or a response to the guilt from which he is acquitted. See Fashanu v. United Kingdom (1998) [38].
- In summary, we can say the following: it is generally accepted in English law and in European countries (but not to the same extent in countries-The alliance and not in Canada) that a defendant who was acquitted must be indemnified for the expenses he incurred in the criminal proceeding. This rule is accompanied by these and other exceptions, but this is the rule and these are the exceptions. The same applies to indemnification for expenses, not so with compensation for arrest or imprisonment. Compensation of sort-This is only given in a few countries.
Models and Considerations in the Matter
- This issue that we are now dealing with – the issue of the right of a defendant who is found legally entitled to receive indemnification from the state for his expenses and compensation for his arrest or imprisonment – raises three fundamental models for the solution: One model, according to which the state should not be obligated to compensate or indemnify a defendant who was acquitted. This model gives weight to the need to strengthen the hands of the prosecution in order to prevent a burden on the state budget and to prevent a burden on my homes-The Trial. Second model - This model is contrary to the first model, according to which the very acquittal of a person in a criminal case establishes grounds for compensation and indemnification from the state. This model, needless to say, gives weight to the individual's right, to his status vis-à-vis the state, and to the need to supervise the claim. Model III He is an intermediate model, a model of the golden path. This model rejects the all-or-no binary solution system-Nothing, and in the golden way he asks
to decide the question of the right of the innocent defendant – and on the other hand, the question of the liability of the state – according to the circumstances of each and every case. Thus, in giving varying weight to the interests in the matter and while taking into account the interests involved in the specific case that is before the court for its decision. According to this model, a defendant who is acquitted can only be granted indemnification for his expenses – in whole or in part – or both indemnification and compensation for his arrest and imprisonment, full or partial indemnity and compensation.
- In the past, the first model was dominated by the state, in which the state was immune and immune to any claim for compensation or indemnity, and where the state granted all-This is compensation or indemnification for a defendant who was found innocent in his case, whether it was compensation or indemnification of-Kindness, compensation, or indemnification in the past-From a line-The law. Those days are gone-This past-It has been a long time coming, and today no one will claim the state's complete immunity. The choice therefore remains between the second model – the model of the absolute right of the individual, and the third model – the model of the relative right of the individual. In fact, we have not found anyone who supports the second model, the model of the absolute right of the individual. Life is too varied to be compressed into the depths of a rigid and lacking rule-Compromises. This is generally the case. Thus in our case-Ours-He. Thus, the third model, the intermediate model, the golden model, remains.
- We have therefore reached the beginning of the shekel-And tarya, to the beginning of the deliberation. The reason for this is that the-Gold is nothing but a framework-Model: Its many shades are different-We have seen this in the trials of other countries. Instruction Article 80 for the Penal Law, she chose one of the variants of the-Gold. As an instruction Article 80The state is not immune and immune to the compensation and indemnification of a defendant who has been acquitted. In-At the time – and unlike in civil law, in which a losing party is obligated to pay, in principle, the expenses of its opponent (28/77 Kamara N. State of Israel [21], p70; Criminal Appeal 1703/96 Anonymous N. State of Israel (Parashat Anonymous [22]), pp. 710-711; Parashat Reich [8], Pp. 486-487; Parashat Gabay [17], p. 42) - The state is not obligated to indemnify and compensate in every case in which a defendant is acquitted. Formulas for the State's Obligation to Indemnify and Compensate a Defendant-They are intermediate, and the burden has been placed on our shoulders to try and fill in the content-of-Exactly the same formulas that the law has equipped us with.
- There are two formulas in the instruction Article 80 of the Penal Law, and each of the two is required to be interpreted. The task is relatively easy, in the case of the first formula, the formula that speaks in cases where he is found to be at home-The trial that there was no basis for the accusation. Definitions of Consideration-This opinion is clear, more or less, although we cannot prevent ourselves from disagreements
Within the framework of this formula – as elsewhere in the law – these disagreements will be relatively innumerable. This is not the case with the second formula, the formulation of those "other circumstances that justify it." This nostalgia, a formula without boundaries, is – neither up, nor down, nor to the sides – and it is amorphous justice that is supposed to be our one and only guide.
- However, the sense of justice as it may be – a feeling that we all share – is not enough, and it will not be right and proper if we seek to do so only as far as the sense of justice is concerned. We must examine things closely; to locate and select the interests that attract the parties; To throw everyone's interests into the cauldron of considerations and try to reach a decision while weighing all the interests of everyone. We discussed these interests in our remarks above, and these are some of them: the place and necessity of the criminal proceedings in a subsidiary-Today; the perception of the relationship between the individual and the state in general and in the criminal proceeding in particular; the criminal proceeding as a proceeding that includes the built-in possibility that a defendant will be acquitted; the damages caused to an individual who is facing a criminal trial and is acquitted; Station Locator-the outcome of the decision on the question of who should bear the damages caused to the defendant in the criminal proceeding; The justice of imposing the risk on the individual who was released is entitled in his judgment, and on the other hand, the harm to the criminal proceeding if at the end of the-of-One day the state will be forced to compensate and indemnify the individual; considerations of social order and dispersal of damage; the concern that imposing an obligation on the state to indemnify and compensate a defendant who was found innocent in his trial may discourage the prosecution; the cost to the company if the state is forced to indemnify and compensate the individual; The individual's ability to prevent the criminal proceeding by convincing the prosecution in advance-A day in his innocence for-even the alleged evidence that was collected in support of his obligation; The acquittal of a defendant is not a purifying acquittal, but rather an acquittal of doubt, or a technical acquittal or an acquittal due to circumstances over which the prosecution has no control (for example: until he disappeared or until he fled the country) and more.
How will these interests, they and others, affect the court's discretion when deciding whether to order the compensation or indemnification of a defendant who has been acquitted: