Damages Fund for Violent Crimes Act

Transcription

1 Damages Fund for Violent Crimes Act Article 1 The following definitions shall apply for the purposes of implementing the Act: the Fund: the Damages Fund for Violent Crimes referred to in Article 2; the Minister: the Minister for Justice; the Committee: the committee referred to in Article 8 and tasked with managing the Fund; the injured party: the victim or their next of kin by whom or on whose behalf an application is made to the Fund for payment of compensation. Article 2 1. There is a Damages Fund for Violent Crimes. In so far as they cannot be made in any other way, payments from this Fund and other expenditure costs shall be effected by the Department of Justice. 2. By way of derogation from the third subparagraph of Article 4(21) of the General Administrative Act, Chapter 4(2) of this Act shall apply. 3.The Fund is a legal person and is established in The Hague. The Chairman of the Committee, or his replacement, is the Fund s legal representative. Article 3 1. Payments from the Fund shall be made: a. to any person who suffers serious physical or mental injury in the Netherlands as a result of a crime committed with intent; b. to any person resident within the territory of one of the Member States of the European Community who suffers serious physical or mental injury as a result of a crime committed with intent on board a Dutch vessel or aircraft; c. to the next of kin of a person indicated in (a) or (b) who has died as a result of the crime. 2. For the purposes of implementing the above paragraph, the following shall be regarded as next as kin: a. the person s spouse in so far as they had not separated, the surviving registered partner and the children of the deceased who were in a family relationship with the deceased; b. other blood relatives or in-laws of the deceased, in so far as the latter provided for them in full or in part or was required to do so by virtue of a court judgment; c. persons who, prior to the event which gave rise to liability, lived with the deceased in a family relationship and depended on him for all or a large part of their livelihood in so far as it is likely that both situations would have continued had it not been for the death of the individual in question and in so far as the persons concerned could not reasonably make adequate provision for themselves; d. persons who lived with the deceased in a family relationship and to whose livelihood the deceased contributed by doing the housework, in so far as such persons suffer losses by dint of having to make other arrangements for the housework to be done following the death of the individual concerned. 3. For the purposes of implementing paragraph 1, a crime committed with intent shall be understood as the punishable attempt to commit such a crime. Article 4 1. Payments shall be determined on the basis of what is reasonable and fair. The maximum amount of a payment shall be equivalent to the losses caused by injury or death, on the understanding that, where the victim has died, only losses resulting from deprivation of livelihood and funeral costs will be covered. No payment shall be made if the financial

2 circumstances of the injured party are such that he or the persons on whom he is dependent can bear the losses without undue difficulty. 2. The ceiling for payments shall be determined by an order in council. These amounts may vary according to the type of losses suffered. Article 5 Payment may be refused, or the amount thereof reduced, if the losses were incurred partly as a consequence of a circumstance attributable to the behaviour of the victim or their next-of-kin. Article 6 1. No payment shall be made in the following cases: 1e. losses that are or can be recovered by means of civil-law proceedings; 2e. losses for which compensation in another form is, or can be, provided. 2. In cases where an investigation into whether compensation for the losses could not be provided in another form or into whether the amount of the losses could not be recovered would seriously delay the processing of the application or give rise to costs which the injured party could not reasonably be asked to bear, these losses can nevertheless be taken into account when payment is made. 3. The Fund shall acquire the injured party s rights vis-à-vis third parties in respect of the losses suffered, these rights being equivalent to the amount paid out to him. It shall enforce these rights only with the Minister's authorisation. Article 7 1. Compensation applications must be submitted to the Fund within three years of the day on which the crime in question was committed. Where the application is submitted by the victim s next of kin, this period shall start on the day on which the victim died. Applications lodged after the deadline has expired shall nevertheless be accepted if it transpires that they were submitted as soon as reasonably practicable. 2. Where an application is lodged within the deadline, an additional application may be lodged in respect of losses which had not come to light at the time of the first application. Article 8 1. Decisions on applications shall be taken by a Committee which is responsible for managing the Fund. 2. The Committee shall consist of a full bench and one or more single benches. The full bench shall consist of five members who are appointed and dismissed by royal decree. The Minister shall designate one of these members as the Chair. As many alternate members as necessary may also be appointed by royal decree. The member of the single bench shall also be appointed by the Minister on a recommendation from the full bench from among its members. The alternate members shall not sit on the single bench. 3. Members and alternate members of the Committee shall be appointed for a period of five years; they may step down earlier on request. They may be reappointed once for the same term. Membership shall terminate at the age of seventy. 4. Straightforward applications lodged with the Committee shall be processed by the single bench. If, in that bench's opinion, it cannot handle an application, it shall refer it to the full bench. The single bench may refer applications to the full bench in other cases as well. Cases may be referred at all stages of an investigation. Processing of referred cases shall be continued as from the stage reached at the time of referral. 5. If, in the view of the full bench, an application is suited for processing by a single bench, it can refer it to a single bench. The fourth and fifth sentences of paragraph 4 shall apply.

3 6. A secretary who is appointed and dismissed by the Minister, after receiving the Committee s opinion, shall be attached to the Committee. Article 9 1. The authorities, bodies and officials concerned shall provide the Committee with the information it requests as quickly as possible and to the best of their abilities. The Committee may also collect information from other persons if it deems this to be necessary for the performance of its duties. 2. The Committee may call witnesses and experts. Injured parties may attend when witnesses and experts are questioned; they shall be given notice of the planned hearing. Article 10 Before taking part in the work of the Committee, the members and alternate members shall take an oath or promise to carry out their duties conscientiously and in accordance with the rules. The Minister shall issue more detailed rules on the way in which the oath is taken or the promise made. Article 11 Travel and accommodation expenses and other expenses shall be reimbursed to the members and alternate members of the full bench. Payments to cover travel and accommodation expenses and to compensate for loss of time shall also be made to the witnesses and experts referred to in Article 9(2) and to the injured party if he has appeared in person at the Committee's request. An order in council shall lay down more detailed rules in respect of this matter. Article 12 The structure and operating methods of the Committee and secretariat shall be more closely regulated by an order in council. In addition, one or more subcommittees can be set up to discharge certain specified duties on the Committee s behalf. Article The Committee may make an interim payment in anticipation of its decision. 2. A decision to award compensation shall generate a claim against the Fund for the amount awarded by virtue of that decision. The secretary shall ensure that the decision is implemented as soon as possible. Article An injured party may lodge an appeal with the Court of Appeal in The Hague within six weeks from the day on which he was notified of the Committee s decision if: a. the application for compensation is refused, or b. the amount of compensation awarded is such that the Committee, having taken all the relevant circumstances into account, could not reasonably come to a decision. 2. The clerk of the Court shall bring the appeal to the attention of the secretary of the Committee. The secretary shall immediately grant the court access to documents in the archives that are of relevance to the case. Article 15 Where the appeal is manifestly inadmissible or unfounded, the court can rule on it immediately. In other cases the Chair shall indicate the time and date on which the appeal will

4 be heard. He shall give the injured party the opportunity to defend the appeal in person or to have it defended by an authorised representative. Article 16 Appeals shall be processed in accordance with the rules set out in Article 9 of this Act and in Articles 429g, 429i, first subparagraph, 429k, first subparagraph, and 429l of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering). Summons and notifications shall be issued as indicated in Article 429 of the Code of Civil Procedure. Article 17 A special bench consisting of three members of the Court shall examine appeals. All hearings may also be assigned to one of the members of this bench. Article The Court s decision shall be duly justified. It shall not be subject to appeal. A copy of the decision shall be sent to the injured party and the secretary of the Committee. 2. If the Court annuls the Committee s decision, it shall refer the matter back to the Committee with a view to its taking a new decision. 3. The Committee s subsequent decision shall be governed by Articles 13 to 18. Article The Minister may lay down more detailed rules on the structure and administration of the Fund and the supervisory arrangements applicable. 2. The Netherlands Court of Auditors (Algemene Rekenkamer) shall be given access, on request, to the books and records, and any information which it deems necessary to make a proper assessment of the Fund s management shall be provided. Article 20 The Committee shall report on an annual basis to the Minister on its activities and on implementation of this Act. The Minister shall forward this report, with any comments he deems appropriate, to Parliament. [Article 21 has been deleted] Article 22 More detailed rules can be laid down for the implementation of this Act by an order in council. Article This Act shall enter into force on a date to be determined [by the Dutch authorities]. 2. No compensation shall be paid for crimes that occurred prior to 1 January Unless a longer reference period applies pursuant to Article 7(1), an application within the meaning of that Article may be lodged up to two months after the date of the entry into force of this Act in respect of a crime which occurred after 1 January 1973 but before this Act entered into force. Article 24 This Act may be referred to as the Damages Fund for Violent Crimes Act (Wet Schadefonds Geweldsmisdrijven).

5 DAMAGES FUND FOR VIOLENT CRIMES DECREE 1. General provisions Article 1 In this Decree the following are understood by: the Fund: the Damages Fund for Violent Crimes; the Minister: the Minister for Justice; the Committee: the Fund management committee. Article 2 1. The following maximum amounts can be paid from the Fund: a. If the payment to the victim or his next of kin is for damage to property: ; b. If the payment to the victim is for some other type of damage: Damage to property shall also be understood as including funeral costs if the victim has died as a result of the crime. 2. Structure and operating methods of the Fund management committee [Article 3 has been deleted] Article 4 1. The full bench of the Committee shall appoint a Deputy Chair from among its members for a period of two years. 2. The name of the person appointed as Deputy Chair shall be notified to the Minister. 3. In the event of the Chair being absent or otherwise engaged, he shall be replaced by the Deputy Chair. 4. In the event of a member of a single bench being absent or otherwise engaged, he shall be replaced by another member of the Committee. [Article 5 has been deleted] Article 6 1. The full bench of the Committee shall hold at least three meetings annually; its decisions shall be taken by majority voting. 2. Decisions on whether to award compensation shall be taken by the single bench if: a. it has accepted the application and has not referred it to the full bench; b. the application has been referred to it by the full bench. 3. In all cases, decisions on whether to authorise an interim payment may be taken by the single bench. Article 7 The Committee shall lay down guidelines on the activities of the full bench, the single benches and the secretary. [Article 8 has been deleted] Article 9

6 1. The secretary shall prepare cases for examination and decision by the Committee. He shall be assisted in these tasks by officials appointed by the Minister. 2. The secretary shall attend the meetings of the full bench of the Committee and shall perform an advisory role in the Committee s discussions. 3. The secretary shall be responsible for implementing the Committee's decisions. Article The secretary shall prepare the report that the Committee submits annually to the Minister on its activities and on implementation of the Damages Fund for Violent Crimes Act. 2. The report shall indicate inter alia the number of compensation applications received by the Committee in the reference period, the action taken on them, the amounts paid out and the particular circumstances which determined the amounts paid. 3. The report shall also contain any comments which the Committee deems necessary to ensure the Act's proper implementation. [Article 11 has been deleted] Article 12 Any party requested by the Committee to provide information shall receive, in so far as he complies with the request, payments to cover travel and accommodation expenses and to compensate for loss of time according to the rates laid down in the Fees in Criminal Cases Act. 3. FINAL PROVISIONS Article 13 This Decree shall enter into force on the day on which the Transitional Arrangements for the Damages Fund for Violent Crimes Act enters into force. Article 14 This Order may be referred to as the Damages Fund for Violent Crimes Order (Besluit Schadefonds Geweldsmisdrijven).

7 Staatsblad van het Koninkrijk der Nederlanden [Netherlands Bulletin of Acts and Decrees] Year Act of 14 December 2005, in amendment of the Criminal Injuries Compensation Fund Act [Wet schadefonds geweldsmisdrijven], implementing Directive no. 2004/80/EC relating to the compensation of the victims of crime We Beatrix, by the grace of God, Queen of the Netherlands, Princess of Orange-Nassau, etc. etc. To all those who may see or hear these presents! Be it known that: In view of the fact that We have considered it necessary to amend the Criminal Injuries Compensation Fund Act [Wet schadefonds geweldsmisdrijven] implementing European Council Directive no. 2004/80/EC, relating to the payment of compensation to the victims of crime (OJ EC L 261); We, therefore, having heard the Council of State, and in consultation with the States General, have approved and decreed as we hereby approve and decree: ARTICLE I The Criminal Injuries Compensation Fund Act [Wet schadefonds geweldsmisdrijven] will be amended as follows: After Article 18 a new Article will be inserted, to read as follows: Article 18a 1. Any person whose normal place of residence is in the Netherlands and who, after 1 January 2006, falls victim to an intentional violent act committed in another Member State of the European Union may submit a request to the fund for compensation from the relevant Member State. 2. The fund shall, at its earliest opportunity, submit a request for compensation to the competent authority in the relevant Member State. 3. Regulations shall be established in the form of an order in council, relating to the submission of requests for compensation and the procedure that shall enable such requests to be processed. ARTICLE II This Act shall come into force with effect from 1 January In the event that the Bulletin of Acts and Decrees in which this Act is published does not appear after 31 December 2005, the Act shall take effect from the date of publication of the Bulletin of Acts and Decrees in which the Act appears and shall have retroactive effect as from 1 January Netherlands Bulletin of Acts and Decrees

8 Kamerstuk We order and command that this Act shall be published in the Bulletin of Acts and Decrees, and that all ministerial departments, authorities, bodies and officials whom it may concern shall diligently implement it. Issued in The Hague, 14 December 2005 The Minister of Justice, J. P. H. Donner Issued on the twentieth of December 2005 The Minister of Justice, J. P. H. Donner STB9891 ISSN Sdu Uitgevers s-gravenhage 2005 Netherlands Bulletin of Acts and Decrees

9 Staatsblad van het Koninkrijk der Nederlanden [Netherlands Bulletin of Acts and Decrees] Year Decree of 13 December 2005, in amendment of the Criminal Injuries Compensation Fund Decree [Besluit schadefonds geweldsmisdrijven], implementing Directive no. 2004/80/EC relating to the compensation of the victims of crime We Beatrix, by the grace of God, Queen of the Netherlands, Princess of Orange-Nassau, etc. etc. Based upon the recommendation of Our Minister of Justice of 15 September 2005, no /05/6, Directorate of Legislation; In view of Article 18a, item 3 of the Criminal Injuries Compensation Fund Act [Wet schadefonds geweldsmisdrijven]; Having heard the recommendation of the Council of State of 13 October 2005, no. W /l); Based upon the recommendation of Our Minister of Justice of 5 September 2005, Directorate of Legislation, no /05/6,; hereby approve and decree: ARTICLE I A The Criminal Injuries Compensation Fund Decree [Besluit schadefonds geweldsmisdrijven] shall be amended as follows: After replacing the full stop at the end of this Article with a semicolon, the following shall be added to Article 1: member state: a member state of the European Union. B After Article 2, a new Article 2a shall be inserted, to read as follows: Article 2a. The functional method of the fund in the event of requests for compensation and the procedure in which these shall be handled when other countries are involved Article 12a 1. At the request of the applicant, the funds shall ensure that: a. information is provided as to the possibility of requesting compensation Netherlands Bulletin of Acts and Decrees

10 b. that the required application forms are completed and information provided as to how they should be completed c. that requests for compensation, together with any supporting documentation, are forwarded as rapidly as possible to the competent authority in the relevant Member State d. that general advice is provided, if necessary, with regard to any additional information requested by the competent authority in the relevant Member State and that such additional information is forwarded promptly 2. The fund shall submit the request and the information documentation referred to in paragraph 1, items c and d in the official language or one of the languages of the Member State of the competent authority to which the request, the documentation and information are being sent, if that language is one of the official languages of the European Community, or in another official language of the European Community that the Member State involved has indicated that it is able to accept. Article 12b 1. After receiving a request for compensation from the competent authority of another Member State, the funds shall forward to that authority and to the applicant the following information without delay: a. confirmation that the request has been received b. the name of the contact person or department to which the handling of the request has been assigned c. if possible, an indication of the expected date upon which a decision may be expected 2. Article 12a, item 2, shall apply, as appropriate, to the information referred to in item The fund shall forward the decision with regard to the request, as soon as possible, to the applicant and to the competent authority referred to in item 1. Article 12c 1. In the event that the competent authority of a Member State wishes to interview the applicant or any third party, such as a witness or expert, the fund shall enable the relevant competent authority to interview the applicant in person or by telephone or by video link, or the fund shall interview the applicant or third party itself and shall forward the minutes of the interview to the competent authority. The applicant and third parties are not obliged to cooperate with a request for an interview in person. 2. In the event that the fund wishes to interview the applicant or any third party, such as a witness or expert, it shall inform the competent authority in the relevant Member State thereof. ARTICLE II This Decree shall take effect at the same time as the amendment of the Criminal Injuries Compensation Fund Act [Wet schadefonds geweldsmisdrijven], implementing Directive no. 2004/80/EC relating to the compensation of the victims of crime Netherlands Bulletin of Acts and Decrees

11 The recommendation by the Council of State will not be made public, in accordance with Article 25a, item 5 j item 4, under letter b of the Council of State Act [Wet op de Raad van State], as it solely contains remarks of an editorial nature. We order and command that this Decree and the associated Explanatory Notes be published in the Netherlands Bulletin of Acts and Decrees. The Hague, 13 December 2005 Beatrix The Minister of Justice, J. P. H. Donner Issued on 20 December 2005 The Minister of Justice, J. P. H. Donner STB9834 ISSN Sdu Uitgevers s-gravenhage 2005 Netherlands Bulletin of Acts and Decrees

12 EXPLANATORY NOTES The Decree arises from Article 18a of the Criminal Injuries Compensation Fund Act, the said Article having been based upon Directive no. 2004/80/EC of the European Council, dated 29 April 2004, relating to the compensation of the victims of crime (OJEC L261, hereinafter: the Directive). In the event that someone becomes a victim of a crime in an EU Member State other than the one in which he/she resides, the Directive shall govern the way in which the victim (or his/her surviving relatives) may, from the country of residence of the victim, submit an application for compensation in the country in which the incident occurred. The victim will receive assistance from his/her own national authority, which in the Netherlands is the compensation fund for victims of violent crime [schadefonds geweldsmisdrijven] (hereinafter referred to as: The Fund). The Fund shall ensure that an exchange of information takes place with the competent authority in the country in which the crime took place and shall provide the victim with the information that he/she requires in order to submit a request for compensation. The purpose of the Directive is therefore to facilitate the procedure for victims when claiming compensation from the Member State in which the crime took place. Before the Directive came into being, the situation was as follows: If in fact there was a possibility for a victim to submit a request for compensation from another Member State, the victim had to contact the competent authority in the other country directly, despite any communication and language problems that that may entail. Forms had to be completed in a foreign language and the postage costs were also higher. In the new situation, it is possible to submit the request to the competent authority in the victim's own country, which in the Netherlands is the Fund. The Fund provides assistance in completing the application forms and acts, where necessary, as a point of contact. Communication always takes place in the victim s native language. It is expected that the number of requests for compensation (of victims) will remain limited to approximately 25 per year. Though at first glance, it appears that the administrative hurdles facing individuals have increased (according to information provided by the Fund, this amounts to no more than 5.5 hours per request), it should be borne in mind that the proceedings for victims have become significantly simpler. They are no longer required to contact the competent authority in a foreign country, but receive assistance from the Fund, with all of the (aforementioned) benefits that brings. All in all, it is more likely that the administrative burden upon individuals has been reduced. For this reason, Actal decided not to select this Decree for checks into the administrative burden for individuals. The procedural regulations that form part of the Directive are included in the Criminal Injuries Compensation Fund Decree (BSG) in a separate paragraph 2a. Articles 4, 5, parts 1 and 2 and Articles 6 and 8 of the Directive are included in Article 12a, item 1. The Directive sets out what the role of the Fund, as an organisation that provides assistance, shall include. Amongst other things, the role of the Fund is to provide potential applicants with information, to issue the required application forms and to provide information about how to complete them and to send them to the competent authority of the Member State. Article 14 of the Directive also states that the European Commission must have compiled a standard application form by 31 October 2005 at the latest. The decision regarding a request for compensation shall be taken by the competent authority in the country in which the crime was committed. As the role of the Fund is merely to provide assistance, there is no scope for it to become involved in assessing the content of an individual request. Netherlands Bulletin of Acts and Decrees

13 Article 11, item 1 has been included in item 2 of Article 12a. It relates to the languages to be used in the correspondence between the various authorities involved. Article 12b, item 1 arises from Article 7 of the Directive. It relates to a situation in which the Fund receives a request from the competent authority in another EU-Member State: the Fund is in that case the deciding authority. In that instance, confirmation of receipt must be provided, amongst other things. Item 2 of Article 12b requires that the stipulations of Article 12, item 2 relating to the languages to be used, should similarly apply. Item 3 of Article 12b, which incorporates Article 10 of the Directive, stipulates that the decision as to the request should be sent to the applicant and the competent authority as quickly as possible. In accordance with Article 14 of the Directive, the European Commission is required to have developed a standard form for the notification of decisions by 31 October 2005 at the latest. In line with Article 9 of the Directive, Article 12c contains a rule governing the questioning of the applicant or of a third party, such as a witness or expert. Item 1 stipulates that the Fund must provide assistance, in the event that a competent authority from another Member State of the EU wishes to question a Dutch applicant for compensation (or a third party). Such an interview may take place either directly by telephone or video link, or be carried out by the Fund. In the latter case, the Fund shall forward the minutes of the interview to the competent authority. Item 2 contains regulations relating to interviews in cases where the Fund is the decision-making body. Should the Fund wish to interview an applicant from another Member State of the EU, it should inform the competent authority in the relevant Member State thereof. The competent authority shall then lend assistance, in accordance with Item 1. The Minister of Justice, J. P. H. Donner Netherlands Bulletin of Acts and Decrees

14 Annex Transposition table re. the Directive for the Compensation of Victims of Violent Crime Directive Art. 1: Art. 2: Art. 3, Item 1: Art. 3, Item 2: Art. 3, Item 3: Art. 4: Art. 5, Items 1 and 2: Art. 5, Item 3: Art. 6, Item 1: Art. 6, Items 2 and 3: Art. 7: Art. 8: Art. 9: Art. 10: Art. 18a, Item 1, Criminal Injuries Compensation Fund Act (WSG) Article 18a, Item 2, WSG Article 18a, Item 1, WSG does not require implementation. The Criminal Injuries Compensation Fund Act already provides for this. Does not require implementation Article 12a, Item 1, Criminal Injuries Compensation Fund Decree (BSG) Article 12a, Item 1, BSG does not require implementation (see explanatory note to Article 12 a BSG) Article 12a, Item 1, under c, BSG do not require implementation Article 12b, Item 1, BSG Article 12a, Item 1, under d, BSG Article 12c BSG Article 12b, Item 3 BSG Art. 11: Articles 12a, Item 2 and 12b, Item 2 BSG Art. 12: Articles 13 up to 17 inclusive: Art. 18, Item 1: Art. 18, Item 2 up to Article 21 (inclusive): Article 18a WSG no implementation required Article II WSG no implementation required Netherlands Bulletin of Acts and Decrees