Compensation of Non-Material Damage in Civil and Criminal Law in the Netherlands

AuthorMarijke Malsch
Published date01 January 2002
Date01 January 2002
DOIhttp://doi.org/10.1177/026975800200900103
Subject MatterArticle
International Review
of
Victimology, 2002,
Vo1.9,
pp.31-42
0269-7580/02 $10
© A B Academic Publishers
-Printed
in Great Britain
COMPENSATION OF
NON-MATERIAL
DAMAGE
IN
CIVILAND CRIMINAL
LAW
INTHE NETHERLANDS
MARIJKE MALSCH
Netherlands Institutefor the Study
of
Crime and Law Enforcement(NISCALE), P.O. Box 792,
2300
AT
Leiden, The Netherlands
ABSTRACT
In cases
of
war, large-scale accidents, and crime, victims may suffer serious non-material damage.
This article focuses on the compensation of non-material damage in both civil and criminal cases.
Compared to other countries, Dutch courts do not honour such claims on a wide scale. The article
discusses court decisions concerning claims for non-material damage, both in the Netherlands and
in other countries. The functions that compensation for non-material damage may have for the
victim are explained. Theories about the goals
of
punishment and archetypal models
of
acriminal
justice system form the background of this description. It is concluded that in the absence of more
sophisticatedmethods
of
compensationor redress, a monetary compensation is to be made available
for victims suffering from non-material damage.
INTRODUCTION
By the end
of
the 20th century, an increased awareness of justice seemed to
emerge all over the world. General Pinochet was arrested in London with the aim
of trying him for crimes he committed when he was the Chilean Head of State of
number of decades earlier. The Yugoslavia Tribunal, having tried a number of
'lower-level' war criminals, recently brought charges against Karadzic, Mladic
and Milosevic. Recently, Milosevic was arrested and transferred to The Hague
where the Yugoslavia Tribunal sits. Shortly before the new millennium, about a
hundred countries signed the Statute for a new International Criminal Court that
will also be located in The Hague.' This international court will try such crimes
as genocide, crimes against humanity, war crimes, and the crime of 'aggression'
committed by individuals in the countries which have signed the Statute. Com-
mand responsibility is clearly established as a basis for liability; it is generally
accepted that it is undesirable that the intellectual authors
of
the genocide, such
as political and military leaders, should have the opportunity to escape prosecu-
tion (Robertson, 1999). In South Africa we have seen the institution
of
a Truth
and Reconciliation Commission. The emphasis in the work of this Commission
is placed both on the finding of truth and the reconciliation between victims and
perpetrators with respect to crimes and harmful behaviours committed under the
apartheid regime. Actions, crimes and behaviours are being discussed

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