Yesterday I read to my son from the travelogue “Gulliver's Travels,” penned by Jonathan Swift in 1726. The story is about Gulliver's adventures on the island of the Lilliputians, a small but righteous people. What was my surprise when I read the following passage, about how the Lilliputians arranged compensation for innocent victims of crime:
“If the possessions of the condemned were not sufficient for the compensation of the innocent, the king provided a supplement from the possessions of the crown.”
How striking is the similarity on that point between the Netherlands and the realm of the Lilliputians! In the Netherlands, too, we have the principle that the damages of a crime victim after a criminal proceedings reimbursed from general funds, if the offender is unable to do so himself. This construction is known as the advance payment scheme.
Coincidentally, the figures that the State has paid to crime victims under the advance payment scheme were announced this week. EenVandaag published the figures and held a Q&A with me, see this link.
The advance payment scheme is important for victims of violent and sex crimes because it is often the only way to receive compensation for the damages suffered. With substantial physical and mental injuries, victims are often no longer able to work fully and their livelihood is threatened. The liable party (the “perpetrator’) offers little or no recourse. The perpetrator's liability insurance does not cover the damage because it was inflicted intentionally. Even the compensation offered by the Damage Fund for Victims of Violent Crimes is in most cases insufficient to secure one's livelihood in cases of serious physical and psychological injury. Precisely to put an end to this additional suffering of the victim, the advance payment scheme was introduced in 2011. The underlying idea of then Minister Hirsch Ballin was that society should prevent victims from having to bear their damages all by themselves: ‘It is the responsibility of the government to prevent persons who are victims of a serious crime of violence from having to bear the damages they have suffered as a result of it all by themselves.’ (Parliamentary Papers I 2007/08, 30143, D, p. 8 (Memorandum of Reply)).
To my knowledge, the Netherlands and France are so far the only EU countries with such an advance payment scheme. The European Commission would like all EU countries to follow suit. Last summer, the European Commission made a proposal to amend the Victims“ Directive, which would require member states to advance to the victim the compensation imposed by the criminal court. This ”upfront payment" proposal has yet to be adopted by the European Parliament, but it shows how important the European Commission considers victim compensation to be.
The figures show that the average amount paid to victims in sex and violent crimes is increasing. I have two explanations for this. The first is that, in my impression, more and more criminal judges are willing to substantively assess a victim's civil claim in the criminal trial. Prior to 2019, criminal judges were still frequently referring these claims to their civil colleague on the grounds that they would be too complicated for assessment in the criminal trial. Since the Supreme Court in 2019, in a so-called summary judgment, called on criminal judges not to refer claims for damages to the civil court more often than necessary, I see an increased willingness of criminal judges to include these claims in the criminal trial. The Supreme Court ruling has alerted judges to how important it is for victims to get their damages compensated in a simple and easily accessible way. The second explanation for the increase is an incidental one: the post-2016 figures include the large sum of over 16 million euros that the criminal court in the MH17 case awarded to the next of kin. The MH17 case was unique in that respect; such large amounts of damages are rare in Dutch criminal proceedings.
The idea that the political parties had in 2011 when the advance payment scheme was introduced still stands as far as I am concerned. That thought was that it is unacceptable for victims of serious violent and sexual crimes not to receive compensation for their damages. Given the large amount now being charged to the government, the question does arise as to whether we should not regulate the compensation of crime damages in some other way. I have advocated that part of the claims burden be placed on private insurers. The concrete ideas for this I presented in my scientific research filed. The VVD has adopted this idea in its party program. If the burden of damages can be partly placed on the private market, capping the advance payment scheme is an option. In this way, the damage burden would be shared more fairly between the government and private parties, not just on Lilliput Island.