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Civil proceedings can be brought by anybody who has suffered loss as a result of an offence. The victim has a choice of either joining a civil claim for damages to the criminal proceedings or awaiting the outcome of the criminal proceedings and then, bringing an action for compensation in the civil courts.
The claim for damages in the criminal proceedings is known in French as the “partie civile” action.
A victim of an offence who has suffered loss can join a civil claim for damages at any stage of the investigation or even when the case is actually being heard, until the proceedings at first instance are complete.
The Criminal Investigation Code also allows the victim of an offence to launch a prosecution by registering a direct summons at the appropriate criminal court. The courts have held that “To be eligible to present a direct summons in the criminal courts, it is both necessary and sufficient for the person taking the action to have suffered personally from the offence that is being prosecuted, that is to say he must show that he was the victim of the offence, this being a matter for the court to assess as a point of fact”.
Incidentally, it is not possible to launch the prosecution and commence partie civile proceedings if the offence is in the most serious category. Nor may a complaint have the effect of launching a prosecution if there are other barriers (e.g. limitation periods).
A victim who wishes to launch a prosecution must lodge a complaint with the investigating judge and join a civil claim to it. The investigating judge records the lodging of a complaint in an Order which also determines the amount of the security to be lodged by the civil claimant to cover the costs of the action. A complaint with a civil claim joined is admissible only after the amount determined by the investigating judge has been paid into court.
If the prosecution was launched at the motion of the prosecution service (or another civil claimant), the victim of the offence may join a civil claim at any stage of the investigation, and even when the hearings have already begun. There are no specific forms to be respected, though a written application is usually made. A victim who joins a civil claim to prosecution that has already been launched does not have to make a payment into court.
The purpose of joining a civil claim is to obtain compensation for the harm suffered by the victim. The victim must accordingly present the elements of the harm suffered and provide the court with all requisite evidence.
A victim who meets the statutory requirements is eligible for legal aid.
A victim must provide the court with all requisite evidence to show the extent of the harm suffered. Depending on the circumstances, he may also have to show the causal link between the offence and the harm suffered.
The judicial authorities do not assist the victim in enforcing orders made in civil proceedings ancillary to the criminal judgment. The victim must have them enforced by a bailiff.
But the sentencing court will sometimes impose a suspended sentence, and compliance with the order for compensation of the victims may be a condition of the suspended sentence. In such cases the offender’s suspended sentence may well be converted into a firm sentence if he does not fully compensate the victims.
A State compensation scheme was set up by the Act of 12 March 1984 on compensation for certain victims of personal injury as the result of crime.
The Act of 12 March 1984 applies only if the victim suffered personal injury as the result of intentional offence. Harm suffered as a result of offences committed negligently are not, therefore, covered.
To be eligible for compensation, the offence must have caused “the victim’s death or permanent incapacity or total incapacity for work for one month or more” and the personal injury must entail “serious disruption of living conditions; this may be the result of loss or reduction of earnings, or additional expenditure, or inability to engage in an occupation, or a physical or mental disorder”.
Compensation may be available for near relatives if they can be regarded as victims of the offence. The Act specifically refers to cases where the offence has caused the victim’s death and serious disruption of his living conditions.
But the harm must be suffered by the parent or the near relative personally. The Act would not apply if, for example, the parent succeeded to the victim’s rights.
The victim is eligible for the compensation scheme if 1) he is lawfully and habitually resident in the Grand Duchy, or 2) he is a national of a Member State of the Council of Europe, or 3) he was in a lawful situation in the Grand Duchy at the time of the offence and has the nationality of a State which would have compensated a Luxembourg citizen if he had been the victim of the same offence at the same time and in the same circumstances in that State.
The Act applies only if the harm was suffered in the Grand Duchy of Luxembourg.
The Act imposes no such condition.
The decision of the Minister of the Justice may not be taken until the criminal court has come to its final judgment.
If a case is referred to him before judgment has been given, the Minister may defer his decision until the court has come to its final judgment.
Compensation may be paid under the Act of 12 March 1984 only if the victim has been unable to obtain full and adequate compensation from another source.
Identification of the offender is not a condition for the application of the statutory scheme. But the applicant must provide evidence that the offence was actually committed and that he cannot obtain compensation from another source.
To be valid, applications must be made within one year of the offence. If the offender is prosecuted, the time-limit shall be extended to expire one year after the final judgment of the criminal court hearing the case. However, the Minister of Justice shall grant the applicant an exemption from the time-limit if the applicant can show that there are personal or material circumstances preventing him from making his application within the time-limit (e.g. because an expert assessment has been ordered to ascertain the scale of the loss suffered by the victim).
Only personal injuries are eligible for compensation.
Each application is examined by a committee consisting of a judge, a senior civil servant at the Ministry of Justice and a member of the Order of Advocates. The committee calls the applicant to appear and allows him to make his views known. The committee issues an opinion on the eligibility of the application and the amount of compensation to be awarded, based on the seriousness of the disruption of the applicant’s living conditions, subject to the last paragraph of Section 1.
The amount may not exceed the maximum set each year by Grand-Ducal Regulation.
Where, after the compensation or payment on account has been paid, the victim obtains actual compensation of whatever kind for the injury he sustained, the Minister of Justice may, after receiving the opinion of the committee set up under Section 2 and on the terms specified therein, order that the compensation or payment on account be reimbursed in whole or in part.
The Act provides that compensation may be withheld or reduced on the basis of the victim’s conduct at the time of the offence or his relationship with the offender.
Advances may be paid.
Yes. Applicants without adequate financial resources may apply for legal aid in the event of both contentious and non-contentious proceedings.
Applications must be sent to the Chairman of the Order of Advocates for the place of residence (Luxembourg or Diekirch). Forms can be obtained from the Order.Top
Last update: 05-04-2006