Victims of violent crime in Ireland are expected to get higher State compensation payments following a significant decision from the EU’s Court of Justice.
The Court of Justice (CJEU) declared the exclusion of compensation for pain and suffering under Ireland’s Criminal Injuries Compensation Scheme (CICS) is precluded by an EU directive. The 2004 directive requires compensation must be “fair and appropriate” and take account of the seriousness of the consequences of the crime for the victim, it declared.
The Luxembourg court issued its judgment on Thursday after the Irish High Court sought a preliminary ruling on issues raised in a case by a victim of crime, relating to the State’s obligations under the CICS.
Welcoming the judgment, the victim’s solicitor James MacGuill said it was “a long overdue finding in favour of victims of crime who have been undercompensated since 1986”.
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Born in Spain but residing in Ireland, the victim, whose identity was anonymised, sought compensation after suffering a violent assault by a group of people in front of his Dublin home in July 2015.
He claimed he suffered a significant eye injury resulting in a permanent partial loss of vision, and various other injuries, including to the jawbone, shoulder, arm, waist and chest. He claimed he suffers from mental distress and anxiety and, having been absent from work following the assault, was dismissed by his employer and was unemployed when he applied for compensation in October 2015.
After finding he suffered personal injuries and material loss arising from a violent intentional crime and had not received compensation from other sources, the Criminal Injuries Compensation Tribunal awarded him a total €645.62 for out-of-pocket expenses incurred as a direct result of that crime. The sum comprised €44.20 to replace his driving licence, €339 to replace his spectacles, €28.82 for purchase of medicine, €100 for hospital costs and €133.63 for travel expenses.
In August 2019 the man took High Court proceedings, arguing the CICS is incompatible with the EU Charter of Fundamental Rights and a 2004 EU directive because it failed to provide for fair and appropriate compensation in excluded general damages, including for pain and suffering. The man claimed he was entitled to such damages.
The High Court’s Ms Justice Emily Egan, when referring issues to the CJEU, said she had doubts whether the Irish scheme could have been limited in the way it had, to exclude compensation for pain and suffering.
In its judgment, the CJEU noted the CICS was established in 1974 and is administered by the tribunal. It originally provided for payment of ‘general’ damages, including for pain and suffering, but was amended in April 1986 to exclude compensation for pain and suffering, in respect of general damages.
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The amendment was due to concerns its original scope had serious consequences for the finances of the State, then experiencing an economic recession.
Ireland, the CJEU noted, provided for a scheme of compensation which was subsidiary to the reparation victims may obtain from an offender, but adopted because victims will often be unable to obtain compensation from the offender.
Under a 2004 directive, all member states must ensure national rules provide for the existence of a scheme of compensation to victims of violent intentional crimes committed in their territories, which guarantees “fair and appropriate” compensation, the CJEU noted. It was ultimately for national courts to ensure the compensation was fair and appropriate compensation, within the meaning of Article 12(2) of the 2004 directive.
A member state would exceed its discretion if its scheme provided compensation “purely symbolic or manifestly insufficient” having regard to the seriousness of the consequences, for the victims, of the crime. To be classified as “fair and appropriate”, compensation must take into account the seriousness of the consequences for the victims and represent an “appropriate” contribution to reparation of material and non-material harm suffered.
The compensation for the harm to this man cannot, subject to verification by the High Court, constitute “fair and appropriate” compensation, within the meaning of the 2004 directive, if non-material harm was excluded. It could not therefore be regarded as taking into account the seriousness of the consequences, for him, of the crime.
