Compensation Across Europe: A Quest for Best Practice1 *
| Author | Marion E.I. Brienen,Ernestine H. Hoegen |
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
| DOI | 10.1177/026975800000700405 |
International Review of Victimology,
2000, Vol. 7, pp. 281-304
0269-7580/00 $10
© A B Academic Publishers —Printed in Great Britain
COMPENSATION ACROSS EUROPE: A QUEST FOR
BEST PRACTICE
1
*
MARION E.I. BRIENEN
T
and ERNESTINE H. HOEGEN*
T
1.
Senior researcher of the Research and Documentation Centre (WODC), Ministry of Justice,
he Hague, The Netherlands
Trainee judge, Arnhem District Court, The Netherlands
The climate, resources, commerce, traditional forms of intercourse, and the
candid or devious character of the inhabitants, all these have a definite
effect on (...) the right to compensation for harm.
2
ABSTRACT
Across the spectrum of European legal systems a variety of models have been created to enhance
the victim's chances of receiving compensation for injuries and losses suffered as a consequence
of a criminal offence. In this article, three models are examined which allow the victim to claim
compensation from the offender within the context of the criminal process. Each of these models
has evolved in a distinct legal tradition and has specific merits and limitations. After weighing the
respective strengths and weaknesses, and indicating how each model can be improved, the article
concludes with a set of criteria that form a blue print of 'best practice'.
INTRODUCTION
One of the fundamental principles of justice is the victim's right to compensation
for the injuries and losses he has suffered as a consequence of an offence
committed against him.
3
In principle compensation should be paid by the
offen-
der,
for he is the one who has caused the damage. In this respect different models
may be distinguished. The victim may sue the offender in a civil court, but there
are also models which allow the victim to claim compensation within the context
of the criminal process, namely the adhesion procedure, the compensation order
and a hybrid model combining the adhesion procedure with a compensation
measure. Compensation from the offender to the victim may also be achieved
through mediation.
In many jurisdictions, victims of violent offences may claim compensation
from the
state.
The European Convention on the Compensation of Victims of
Violent Crime was opened for signature on 24 November 1983. To date, only a
limited number of states have ratified and enacted the Convention,
4
although
more states have some form of state compensation scheme for victims of violent
crime.
5
* At the time of writing, the authors were both researchers at Tilburg University in The Netherlands.
282
In this article we analyse the three compensation models that are integrated
into the criminal process.
6
Starting with the adhesion procedure, followed by the
compensation order and finally the hybrid model, we discuss variations on each
model and signal problems encountered regarding the making of the claim,
evidence, the attitude of the judiciary, and enforcement. We then review possible
solutions to these problems and conclude with some remarks on best practice in
relation to compensation for the victim from the offender. Our findings on the
functioning of the compensation models in theory and in practice are based on
extensive research in 22 jurisdictions on the implementation of Recommendation
(85) 11 of the Council of Europe on the position of the victim in the framework
of criminal law and procedure.
7
This recommendation contains a number of
provisions for the claiming of compensation by the victim in the course of
criminal proceedings against the offender.
8
ADHESION PROCEDURE
The adhesion procedure, or
partie civile
model,
9
allows the victim to present his
civil claim for damages in adhesion to the criminal proceedings. In the adhesion
procedure, the criminal court is asked to decide simultaneously on both the
criminal and the civil liability of the offender. Although one and the same
criminal court decides both issues, its decisions regarding these issues are of a
distinctly different legal nature and have different legal consequences. As a
result, an explicit claim must be filed for the criminal court to decide on the civil
liability and the injured party must enforce the verdict of the court regarding
compensation himself. As a party to the civil proceedings within the criminal
trial, the victim has participatory rights. The adhesive procedure is found in all
Nordic, Germanic and Romanistic jurisdictions included in the study, but not in
common law jurisdictions.
Adhesion procedure: variations
The main variations in the design of the adhesion procedure are caused by
differences in (1) the degree of dependency of the civil claim on the main
criminal proceedings, (2) the participatory rights of the victim and (3) the
involvement of the prosecutor in the preparation and presentation of the claim.
With respect to the degree of dependency of the civil claim, in many jurisdic-
tions the civil claim is subordinate to the criminal proceedings. The civil claim
can only be dealt with within the criminal proceedings if the offender is found
guilty of the criminal offence. In some jurisdictions this subordination is much
weaker and a civil claim may be presented within the criminal proceedings even
if the offender is not found guilty.1°
To continue reading
Request your trial