Muripo muKutongwa Kwemhosva

Have you suffered damages as a result of a crime? Did you know that you can claim compensation not only in civil proceedings but also within criminal proceedings? It is essential to know your rights and how to be compensated for damages. In the Netherlands, the Code of Criminal Procedure (Sv) allows crime victims to claim compensation through the criminal courts. Article 51f of the Code of Criminal Procedure states that persons who have suffered direct damage due to a criminal offense can file a claim for compensation as the injured party in the criminal proceedings against the accused.

How Can You Claim Damages?

  1. Joint: damages within criminal case

If the prosecutor decides to prosecute the accused for the offense you are a victim of, you can ‘join’ the criminal proceedings as an injured party. This means that you claim compensation from the accused within the criminal case. Your lawyer will draft this claim in consultation, using your information and documents. This procedure was created for victims of a criminal offense so that there is no need to start separate proceedings to recover damages. You may attend the criminal trial and explain your claim, but this is not mandatory. In serious crimes, victims and relatives also have the right to speak to share their experiences and consequences. If the judge sentences the accused, he will also assess your claim.

Conditions for compensation within criminal proceedings

Filing a compensation claim within criminal proceedings has specific conditions. Below, we explain these conditions so that you better understand what it takes to claim compensation as an injured party successfully.

Kugamuchirwa

To be admissible, the following conditions must be met:

  • Punishment or measure: the accused must be found guilty and a punishment or measure imposed;
  • Direct damage: the damage must have been directly caused by the proven offense;
  • No disproportionate burden: the claim must not impose a disproportionate burden on the criminal proceedings.

Factors relevant in this context:

  • Size of the claim
  • Kuoma kunzwisisa
  • Judge’s knowledge of civil law
  • Defence sufficient opportunity to rebut claim

Zvemukati zvinodiwa

  • Clear causal link: there must be a clear causal link between the offence and the harm suffered. The harm must be directly and clearly the result of the offence;
  • Uchapupu hwakasimba: there must be strong evidence of the offender’s guilt, which increases the likelihood that the criminal court will grant the claim. There must also be evidence that the defendant is responsible for the damage;
  • Mutoro wehumbowo: the injured party must provide sufficient evidence to prove the damage and connection to the offence. Proper substantiation of the claim is essential.

Advantages of joinder in criminal proceedings

  • Nzira Yakareruka: It is relatively simple and faster than civil proceedings;
  • No own collection: If the claim is awarded, you do not have to collect the money yourself;
  • Kubudirira uye nekukurumidza: it is quicker than separate civil proceedings because the compensation is dealt with directly in the criminal case;
  • Mari yekuchengetedza: joining as an injured party is often less costly than starting a separate civil lawsuit;
  • Stronger evidence position: in criminal proceedings, evidence is gathered against the defendant and presented by the Public Prosecutor’s Office (OM). This evidence can also serve to support your compensation claim.

Disadvantages of joinder in criminal proceedings

  • Simple damage: Only easily ascertainable damage can be recovered;
  • Kusatenda: Uncertainty about the outcome if the accused is acquitted

Compensation measure and Advance payment scheme

When compensation is awarded, the criminal court often imposes a compensation order. This means that the offender has to pay compensation to the State, which then passes it on to the victim. The Central Judicial Collection Agency (CJIB) collects these amounts from the offender on behalf of the public prosecutor. A common problem, however, is that the offender may be insolvent, leaving the victim still without compensation.

To partly solve this problem, the CJIB pays out the remaining amount to the victim after eight months for violent and sex offences, regardless of whether the offender has paid. This scheme, known as the “advance payment scheme”, has been in place since 2011 and only applies to natural persons.

For other crimes, such as property crimes, the advance payment system has applied since 2016 with a maximum of €5,000. This system helps victims receive their compensation faster and reduces their emotional burden and costs.

Although not all victims benefit fully, this scheme offers significant advantages over the civil lawsuit.

Mhando dzekukuvara

In criminal law, both material and immaterial damages can be recovered, provided there is a direct causal link to the offence and the damages are reasonable and necessary.

  1. Kukuvadza Kwezvinhu: This covers all direct financial costs incurred as a result of the crime. Examples include medical expenses, loss of income, repair costs for damaged property, and other expenses directly attributable to the crime.
  2. Intangible Damage: This includes non-financial damages such as pain, sorrow, and psychological suffering. Compensation for intangible damages often involves compensation for “pain and suffering”.

mukati Law & More, we help you assess whether your items of damage are suitable for a criminal law compensation claim. Not every damage item automatically qualifies within a criminal case.

Possible verdicts in criminal proceedings

When you file a claim for damages in a criminal trial, the judge may make several decisions:

  1. Award: the court awards all or part of the damages and often imposes a damages order immediately.
  2. Inadmissible: the court declares the claim for damages in whole or in part inadmissible.
  3. Rejection: the court rejects all or part of the claim for damages.

 

  1. Civil proceedings

If the criminal court does not fully award your claim or if you choose to claim damages through another route, you can file a civil suit. This is a separate lawsuit in which you sue the defendant for the damages suffered. Civil proceedings often make sense for complicated damages, if there is a lot of discussion about the cause of the damage or if the prosecution decides not to prosecute. In such cases, it is not always possible to get compensation for the (entire) damage within the criminal proceedings.

Advantages civil procedure

  • You can claim full damages;
  • More scope to substantiate damages, e.g. through expert evidence.

Disadvantages of civil proceedings

  • Costs are often higher;
  • You have to collect the compensation from the other party yourself.

 

  1. Damage fund for violent crimes

Victims of victims of serious violent and moral crimes can apply for compensation from the Damage Fund for Victims of Violent Crimes. This fund pays a lump-sum benefit based on the nature of the injury, not the actual damage. The fund usually decides within six months and pays the benefit immediately. An application can be made to the Injury Fund as well as a claim in a criminal or civil case. It is important to mention whether you have already received compensation from the offender, as double compensation is not allowed. We can also help you file an application.  

 

sei Law & More can assist you with compensation in criminal proceedings

  1. Assessing damages claims: We can assist you in determining whether your damage claims are suitable for filing a criminal law compensation claim;
  2. Legal advice: We offer expert legal advice on the feasibility of your claim within criminal proceedings and whether it is wiser to pursue civil proceedings;
  3. Preparing the claim: We ensure that your claim is well-founded with the necessary documentation and supporting documents, increasing the chances of a successful adjudication. We help you identify the damage, collect supporting documents, prepare the claim, and submit the joinder form.
  4. Support during court hearings: We accompany you during court hearings and ensure that your interests are represented in the best possible way.

Taura nesu

Do you have questions about compensation in criminal or civil proceedings? If so, do not hesitate to contact the lawyers at Law & More.

Law & More