Immaterial losses Chris van Dijk November 28, 2014

Contents  Dutch legal system  Cases  Legal debate  Draft bill: compensation for persons closely related to the victim

Dutch legal system

Legal system for compensation of immaterial losses Scope of the system: -Aim is to compensate the victim for the diminuation of his well-being -Only the victim is eligible for this kind of compensation -No relation to damages

Legal system for compensation of immaterial losses Dutch law specifies that a victim is eligible for compensation for the violation of personality rights in case of: 1. Physical injury 2. Violation of honour and reputation 3. Violation of other personality rights

Legal system for compensation of immaterial losses Relevant factors physical injury: -Nature of the liability -Nature of the injury -Duration and intensity of the pain and grief and the loss of joy of life -Personal circumstances

Legal system for compensation of immaterial losses Relevant factors violation of honor and reputation: -The nature of the act of violation -The way in which the act of violation has taken place -The consequences for the victim

Legal system for compensation of immaterial losses Relevant factors violation of other personality rights: -Nature of the interest at stake -The seriousness of the violation -The consequences for the victim

Legal system for compensation of immaterial losses Dutch law doesn´t include any limitations on the amount of losses The court has to take earlier judgements in comparable cases inside of the Netherlands into consideration Comparable cases outside of the Netherlands can never be decisive

Determining the amount of losses in practice Limited burden of proof for the victim The court decides according tot the rules of reasonableness and fairness The court is not required to substantiate its decision extensively

Determining the amount of losses in practice The amount of losses has to be proportionate to the size of the disadvantages In principle all circumstances are relevant The victim is free to spend the compensation as he pleases

Immaterial losses in practice: jurisprudence Immaterial losses awarded by courts stable since 1990’s Most compensations (by far) below HUF (EUR ) Sporadically > HUF (EUR ) is awarded Highest amount awarded ever was HUF (EUR )

Immaterial losses in practice: jurisprudence Examples in case of physical injury -Broken leg (accident) HUF (EUR 5.000) -Facial wounds (physical abuse) HUF (EUR 1.500) -Heart surgery (malpractice) HUF (EUR )

Immaterial losses in practice: jurisprudence To put these figures into perspective: EUR / HUF exchange rate 2013 = 1 / 330 Comparitive pricelevels 2013: Europe = 100 Netherlands = 110 Hungary = 60

Cases

Case: physical injury

A man is made unconscious with sleeping pills, hit on the head with a hammer and suffocated. He survives, but suffers serious consequences.

Case: physical injury Permanent injuries and medical problems -paralysis of the left side of the body -bad vision in one, and blind in the other eye -epilepsy -cognitive- and memory disorders.

Case: physical injury The life of the victim has completely changed -Unable to walk independantly -Has to use a wheelchair -Is dependent on a catheter -24 hours a day taken care of for the rest of his life -Completely disabled -Rehabilitation on a daily basis -Children placed in a foster home

Case: physical injury Considering the gravity and the permanence of the injuries and these consequences, the victim is awarded immaterial losses to the amount of HUF (EUR ).

Case: violation of honour and reputation

Public figure is convinced that an innocent man has been convicted for the murder of a widow and starts a crusade

Case: violation of honour and reputation 1. (Supposed) injustices have to be able to be prevented from surviving by the public not knowing about them VS 2. An individual has the right not lightly to be publically accused of a crime

Case: violation of honour and reputation Priority depends on: -Nature of the accusations -Severity of the consequences -The importance of the (supposed) injustice -The factual basis of the accusations -Alternative available? -The social positions of the accuser and the accused

Case: violation of honour and reputation The court awards the handyman HUF (EUR ) and his girlfriend HUF (EUR ).  The accusations are very severe  The consequences for the accused could be very serious  The opinion pollster will easily be trusted by the public  Alternatives were available  Continuation of the accusations after point was sufficiently made  No self-interest  Handyman and girlfriend spread doubt about alibi

Case: violation of other personality rights

Other personality rights Neighbour gets access to computer TV presenter and steals and spreads nude pictures and a movie over the internet.

Case: violation of other personality rights The court rules that the neighbour has violated the privacy of the TV presenter and awards HUF (EUR 3.000) -The violation is of a serious nature -The victim is a well-known TV presenter -The way in which the victim presents herself on the internet is of no consequence.

Legal debate

Level of immaterial losses for over 20 years the same Low in the Netherlands as compared to other European countries The changing social views not reflected

Draft bill: Compensation for persons closely related

Draft bill: compensation for persons closely related Eligible are partners, parents, children and other persons with a close personal relation to the victim Only granted in case the victim dies, or suffers very serious and permanent injuries Compensation varies between depending on the relation to the victim, the source of the suffering, and whether or not the death or in injury is the result of a violent crime.