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This chapter begins with a discussion on recovering compensation from the offender in the South African context. Thereafter, it summarises the main parameters applied by most international compensation schemes, i.e., the mandate of the scheme, the type of crimes eligible for compensation, as well as who would qualify to apply to the scheme for compensation. Each of these is discussed using international comparative data. The information provided in this chapter is considered the skeleton upon which any legislative framework for a South African compensation scheme would have to be based.
In contemplating the establishment of a compensation scheme, it is important to consider the broad parameters that would be used to define the functioning of the scheme. If South Africa were to set up a compensation scheme, agreement would have to be reached concerning the specifics of each of the parameters outlined below. These would include who would be disqualified from the scheme, what types of crimes would be eligible for compensation, the basis on which the value of compensation would be decided and so on. The chapter begins with an initial discussion on recovering compensation from the offender, thereafter the key areas deemed relevant to developing a state compensation scheme framework are unpacked and discussed.
A right to compensation for damages arising from a criminal act generally exists only against the perpetrator or offender. The South African State has, to date, not assumed a legal obligation to compensate, or contribute to the compensation of, the victim. State-funded victim compensation schemes are based on welfare or social solidarity notions, and are generally dealt with pragmatically. Such schemes are, therefore, subject to economic and political vicissitudes. Most foreign jurisdictions appear to be shying away from increasing the entitlements of victims of crime to state compensation. This is done through encouraging compensation claims against the offender, as well as fostering the development of broader victim empowerment strategies to service victims of crime.
Where state compensation schemes exist around the world, they generally do not pay full compensation, or compensation which is on a par with what would be paid by the offender in a civil case. Many schemes aim rather to contribute towards the compensation of a blameless victim, acting as a social safety net and compensating actual loss as opposed to claims in respect of pain and suffering. In practice therefore, state compensation is usually well below comparable awards arising from civil claims. Yet, the benefits of a State victim compensation scheme include the fact that it enables the victim to avoid the risks of failure, cost implications and trauma inherent in civil litigation, particularly litigation against an offender.
For most countries, compensation should ideally be claimed from the offender and paid directly to the victim before any state compensation or intervention is considered. The next section, therefore, outlines some of the debates concerning compensation from the offender and links these directly to the current legal position in South Africa. Thereafter, the parameters of a state compensation scheme are discussed.
The first recourse that victims have following a crime - and assuming that the offender is arrested and is liable for prosecution - is directly from the offender via a civil claim, or in some countries, through a compensation order made in the sentencing of the offender. In most foreign jurisdictions, a victim is usually entitled to lodge a civil claim against the perpetrator or obtain compensation from the perpetrator during the course of criminal proceedings. Both methods usually have limited success and, even when successful, will only assist victims whose cases have actually reached court, and who can afford to pay.
The methods used to increase the levels of compensation recovered from offenders differ between jurisdictions, with these often being more complex in common law than in civil law jurisdictions. However, few international efforts in this regard have been overly successful due to the complexity and expense, as well as the existence of some levels of resistance in the criminal justice system. In some jurisdictions it is a prerequisite that the victim has sought, or is willing to seek compensation from the offender before the state scheme will even consider the victim’s application. State victim compensation is therefore generally treated as a secondary source of compensation (the principle of subsidiarity).
In South Africa, sections 297 and 300 of the Criminal Procedure Act 51 of 1977 make provision for the court, after finding an accused person guilty, to order the convicted person to pay compensation to the complainant. Section 300 is expressly limited to compensation for ‘damage to or loss of property (including money) belonging to some other person’ limited to R300 000 in the regional court and R60 000 in the magistrate’s court.[38] This provision requires that an application be made by the injured person or the prosecutor acting on the instruction of the injured person. The effect of an award in terms of this section is the same as that of a civil judgment. However, it is not deemed punishment. For such an order to be made, there must have been a conviction. Courts have held that a compensatory order is not a form of correctional supervision and that a failure to comply with such an order does not entitle a court to reconsider or impose any other punishment. [39]
Section 297, which deals with the conditional or unconditional postponement or suspension of sentence, allows the presiding officer to make the payment of compensation to a victim a condition of the suspension or postponement of sentence.[40] It has been held by South African courts that compensation is an important part of the criminal process and that where it is possible to compensate the victim for damages sustained through criminal conduct, this should be done.[41] Orders for compensation are, however, usually not considered ‘unless the complainant requests the public prosecutor to apply to the court for an order and complainants seldom make use of the provisions because they are either not present or they don’t know about the provisions of the act’ (South African Law Commission, 1997, p. 13). Compensation orders are, therefore, usually only granted in circumstances in which an offender is not sentenced to a period of imprisonment.
Sections 297 and 300 have several limitations, particularly in relation to offences involving violence against the person (N van Dokkum ‘Compensation For Victims Of Sexual Crimes’ (1997) Vol 10 No 2 South African Journal of Criminal Justice 285-6). Postponement of sentence on condition of the payment of compensation has generally been held to be suitable only for trivial offences and, therefore, would not be an option for sexual offences and offences of violence other than some assaults. Proper enforcement within the criminal justice system of this legislative provision remains an overriding difficulty.
According to Van Dokkum (1997), it would, however, be competent for the presiding officer to suspend (for no longer than five years) a whole or a part of the sentence on condition that the convicted person pays a stipulated amount of compensation to the victim. Thus, if Section 297 were properly enforced, the convicted person would have an interest in raising the money, consequently pursuing that option more vigorously (van Dokkum, 1997).
Where a period of imprisonment is handed down, it is unlikely that the offender would be able to pay compensation to a victim, unless such offender has available assets or is able to raise the money. Similarly, where an offender receives a fine in addition to a compensation order in terms of section 297, this will reduce the likelihood that compensation can be paid.
In South Africa, it is, therefore, only when the entire sentence is suspended on condition of payment of compensation that it is likely that an offender could be induced to pay compensation to the victim. However, the suspension of a sentence in cases of serious criminal transgressions may well be contrary to considerations of public interest and safety. The Criminal Procedure Act’s provisions pertaining to compensation, therefore, appear to have little relevance, particularly in relation to serious offences involving violence against the person, which tend to be the main focus of most of the existing systems of compensation in developed countries.
Recently, the South African Law Commission has proposed the amendment of legislation to facilitate greater access to compensation by victims through the process of sentencing following conviction of an accused person. There is value in law reform initiatives to improve the capacity of the criminal justice system to make reparative orders. However, even an improved system is likely to be affected by the problems outlined above. Furthermore, the efficacy of such amendments will strongly depend on the ability of the criminal justice system to arrest and convict offenders.
There are no available examples of effective systems of compensation in other jurisdictions which rely primarily on payments made by the offender. Furthermore just as there is often little point in a court order for compensation in terms of section 297, in most cases of violent crime there is little that the victim can gain from a civil action as the offender is more often than not unlikely to be able to fulfil any civil judgment against him or her.
Certain foreign compensation schemes limit the payment of compensation to crimes of violence, though other schemes include the injuries associated with crimes that are not always violent. Generally, however, foreign compensation schemes, rather than base compensation on the nature of the crime, seek to compensate only death or serious injuries – usually defined as being either some form of permanent disability or incapacity to work for a significant period, with a minimum period often set in this regard.
Denmark provides compensation in circumstances in which personal injury resulted from serious criminal offences stipulated in its criminal code (D Lerche ‘Denmark’ in Compensating Crime Victims : A European Survey. Freiburg: Max-Planck Institut 1996). Finland does not require that the crime be of a deliberate or violent nature before compensation can be awarded and, for example, exemption from criminal liability by reason of insanity is not taken into consideration (A Söderholm ‘Finland’ in Compensating Crime Victims : A European Survey edited by D Greer Freiburg: Max-Planck Institut 1996 p.170). In Norway, the state awards compensation for personal injury caused by ‘wilful assault’ or ‘other criminal acts characterised by violence or force’ (G Brottweit ‘Norway’ in Compensating Crime Victims: A European Survey edited by D Greer Freiburg: Max-Planck Institut 1996).
In most foreign schemes, it is only those persons who are blameless victims of crimes of violence, or those injured while attempting to apprehend offenders or prevent crime, who may apply for compensation. Many state compensation schemes compensate for damages only from intentional violent crimes – though the level of intent required varies. Some schemes, therefore, exclude claims in which injury was caused by negligence (often because the effects of accidental injury and death are well covered by other forms of social insurance).
Belgium, for example, compensates only intentional acts of violence against persons. In Denmark, if there exists an objective ground for exemption from criminal liability (such as self-defence, necessity or consent), there is no punishable offence and thus no basis for compensation (Lerche, 1996, p.135). Similarly, if an accused in Denmark is acquitted of an offence, no compensation is payable. Under the German Victim Compensation Act of 1976, the injury must be serious or have caused lasting damage to the victim’s health and have resulted from an intentional and unlawful violent assault (M Kaiser and M Kilchling ‘Germany’ in Compensating Crime Victims : A European Survey edited by D Greer Freiburg: Max-Planck Institut 1996 p.268). The Netherlands adopts a narrow view of ‘victim’, allowing compensation to be granted by the state to victims of deliberate violent crime who have suffered serious bodily or mental injuries (J Wemmers and P de Beer ‘The Netherlands’ in Compensating Crime Victims : A European Survey edited by D Greer Freiburg: Max-Planck Institut 1996 412).
It should be noted that the application of the notion of intentional crime should involve a wide definition of intentionality. It would be unjust if, for instance, a claim were turned down because the injury suffered was the result of being injured by a stray bullet fired negligently by the offender without the offender’s having formed the specific intention to kill or injure the actual (or any) victim. The reasonable possibility of injury/death to some person must merely have been foreseeable to qualify the victim for making a claim It is not, in general, necessary for the victim to have been the intended victim of the act of the offender. In some cases, therefore, even the dependants of a victim of a culpable homicide might well qualify for compensation.
Most schemes do not permit claims for damage to property, although limited claims for personal effects such as spectacles and hearing aids are usually permitted. Denmark, for example, allows compensation to be claimed where a victim has been injured under the heads of medical expenses, loss of earnings, pain and suffering, permanent injury, loss of capacity to work or compensation awarded for loss of a breadwinner and for funeral expenses. No compensation is normally awarded for loss of or damage to property (Lerche, 1996, p.136-137). An exception is Northern Ireland, [42] which allows claims for damage to property under certain circumstances. France allows compensatory payments associated with the loss of sexual function.
Compensation is generally paid to ‘Good Samaritans’ who are injured in the course of trying to prevent a crime or to apprehend a criminal. For example, compensation is awarded in Denmark in circumstances in which personal injury was sustained from giving assistance to the police in relation to an arrest, preventing an offence or with a view to making a citizen’s arrest (Lerche, 1996, p.135). A similar approach is adopted in most other jurisdictions. In Northern Ireland, compensation may be payable even where no violent offence has occurred, but not where such injury was accidental unless an exceptional risk was taken by the victim when injured (Bloomfield et al., 1999, p.41).
Most schemes require that the injury occurred within the territory of the state, although there are exceptions to this general rule. Austria, for example, allows claims if the offence occurred abroad and the applicant has permanent residence in Austria. The District of Columbia in the United States permits claims by its residents injured outside the United States in a ‘terrorist act or act of mass violence’. In Denmark, the offence must have been committed in the territory of Denmark (Lerche, 1996, p.135). Finland allows claims to be made by permanent residents or citizens of Finland even where the offence occurred abroad (Söderholm, 1996, p.170).
Often schemes limit beneficiaries to nationals, permanent residents, those legally present in the country and people from countries with which the relevant reciprocal agreements exist. Denmark permits claims by its citizens and foreign nationals even where such persons were injured during a temporary stay in Denmark (Lerche, 1996, p.135). French law provides that compensation is payable to any national of a member state of the European Union injured by a criminal act committed in France (F Lombard ‘France’ in Compensating Crime Victims : A European Survey edited by D Greer Freiburg: Max-Planck Institute 1996). Compensation is payable to French nationals injured as a result of an offence committed in a foreign country. Germany grants compensation to all European Union citizens or foreigners permanently resident in Germany injured in Germany or on a German ship or aircraft (Kaiser & Kilchling, 1996, p.274). Norway allows compensation to be awarded in circumstances in which the offender and victim are Norwegian even if the injury were sustained abroad (Brottveit, 1996, p.453).
Most foreign compensation schemes require the applicant to report the crime to the police and to lodge a claim within a specified period. Failure to meet these deadlines can result in reduced awards, or in some cases rejection, as can failure to get proper police verification of the incident or medical records.
Belgium requires that claims be lodged within one year of the conclusion of criminal court proceedings. In Great Britain, a claim must be lodged within two years of date of the commission of the offence. The District of Columbia requires that the crime be reported within seven days and a claim lodged within one year. In Northern Ireland, the injury must be reported to the police within 48 hours, a notice of intention to apply for compensation be lodged within 48 hours and an application filed within three months. Denmark requires that a crime be reported to the police ‘without undue delay’ which is commonly interpreted as being within 24 hours, with compensation claims sometimes being refused where reports occur after this period has expired (Lerche, 1996, p.139).
Finland requires that the application for compensation be made two years from the date on which the victim became aware of the crime and five years from the date on which the crime was committed. In Finland, the offence must be reported to the police unless there exist ‘special grounds’ which justify not doing so or the police have become aware of the offence in some other way (Söderholm, 1996, p.171). In Finland, prior to 1985, a victim had ten days within which to report a crime to the police but experience showed this to be insufficient time and currently there is no time period specified in the law (Söderholm, 1996, p.171). A victim is not required to press charges against the offender and may even withdraw charges. However, victims are required to give all reasonable assistance to the State Treasury with regards to their application for compensation (Söderholm, 1996, p.171-2). In France, a applicant has three years within which to claim compensation from the date of the offence. Compensation schemes in the United States vary in the time limit prescribed for the making of a claim from six months to five years, with only one state having no set limit (Bloomfield et al., 1999, p. 163).
Legislative provisions in South Africa limit the time period within which civil claims must be made, and the time period within which civil claims against the police must be lodged is even more restrictive. For administrative purposes, it is recommended that a compensation claim be lodged within a specified time period so as to enable an investigation of a claim to occur timeously and without unnecessary difficulties arising due to lengthy delays.
In most schemes, it is only the actual victims or their dependants who are entitled to claim compensation. Dependants include spouses and common law spouses[43], children and other bona fide dependants. Employers and insurance companies are not permitted to claim from most compensation schemes. In Northern Ireland the funds cannot be claimed by debtors or be transferred to an estate if a person dies (for example, of natural causes) sometime after the injury.
Whilst few schemes legislate as to the manner in which compensation awarded to minor dependants is to be handled, it appears that the majority make provision for lump sum payments which are then managed in accordance with law. Some jurisdictions require that such funds are preserved in a trust, from which payments are made in favour of the children. It is of interest to note that children of deceased victims can receive additional compensation in the Northern Ireland and Great Britain schemes for the loss of parental services.
Some countries reject claims if the victim and offender are part of the same household or family in order to avoid creating perverse incentives or the abuser benefiting from the compensation. More recent trends in foreign schemes move away from co-habitation to an insistence that the victim be ready to assist in the prosecution of the offender as a fraud protection mechanism. However, if compensation is made dependent on women pursuing court cases or co-operating with the criminal justice system, a substantial number may be excluded from compensation. As was noted above (see 3.3.2.10), the reasons for not pressing charges in an abusive relationship can be deep-rooted, and include a fear of the partner's reactions to an investigation and trial, pressure from family members, withdrawal of long-term financial resources if the partner is imprisonment and so on. Conversely, if the willingness to enforce prosecution is not used as a criterion, as is done in most countries, the probability of fraud through falsified domestic violence claims is increased dramatically.
Various issues can impact on whether compensation is granted at all or result in the reduction of the amount awarded.
The establishment of a compensation scheme can take some time. Most countries, however, will only entertain claims after the scheme is fully operational as this allows for proper verification of the claims and injuries. Trying to ascertain reliable information for cases retrospectively can be difficult,[44] thus most countries do not allow for retrospective claims and the only leeway provided is within the parameters of the prescription of the claim from the time that the scheme is operational, unless the offender will not be able to compensate the victim.
Compensation is payable in most jurisdictions, both where the offender is known, as well as where the offender is not identified. In the case of the unidentified offender, this is important in that the compensation scheme assists victims of crime, particularly those who have no recourse to the offender directly. Generally, however, where a victim is able to obtain compensation from the offender, the state compensation scheme will not apply and no state compensation will be granted.
Some schemes limit payments to persons in financial need and apply a means test to assess this, while others simply set a maximum limit on awards for particular injuries, loss of earnings and medical care. In many schemes it is only actual losses which are compensated and any losses compensated by other sources such as by the offender, though insurance policies will reduce the amount paid to the applicant. In all jurisdictions, private insurance will therefore be deducted from any state compensation award. In Belgium, for example, the applicant must have no effective and sufficient compensation available from another source before being entitled to compensation from the state. In Northern Ireland, a victim who receives compensation from the State and then from the offender is required to reimburse the State that portion of compensation received from the offender (Bloomfield et al., 1999, p.64).
Spain does not deduct additional compensation such as pension or private insurance payments from the lump sum paid to victims of acts deemed to be terrorism, but does distinguish between such victims and victims of ordinary crime, from whom private insurance payments will be deducted (Bloomfield et al, 1999, p.169-171). In general, therefore, State compensation programmes internationally are ‘payers of last resort’ in the sense that compensation will not be paid in respect of any loss or expense covered by a collateral source such as medical insurance, pension schemes, insurance arrangements, payments made by the offender, employer wage-continuation programmes, social security and so on (Bloomfield et al, 1999, p.57 & p.164).
Previous involvement in crime and/or criminal organisations and/or organisations involved in political violence is used to exclude or restrict the payment of compensation to applicants in some countries - even where the offence giving rise to the claim was not related to such involvement. Some countries reduce or reject compensation if the award is contrary to public policy or the public’s sense of justice, such as where the applicant is a known criminal. This can also be used to limit an award of compensation to applicants whose injuries were sustained after they initiated the criminal conduct in question, e.g., injuries in a gang fight whilst a member of a criminal gang.
However, the obvious question is whether people who have committed an offence in the past can ever qualify for compensation. This is important as supposedly, even those who have committed severe offences in the past, should maintain the personal right to rehabilitation, following convictions in respect of which offenders can be said to have done their time and paid their dues. Unlike in Finland, in Great Britain, the applicant’s criminal record cannot be used to refuse compensation. The system in Great Britain is the most creative in this regard. In this system, compensation will normally be refused or reduced where applicants have engaged in misconduct before, during or after the incident in which they suffered injuries. Examples in the Criminal Injuries Compensation Authority (CICA) Guide include taking part in a fight voluntarily, striking the first blow without reasonable cause, seeking revenge and provocation.
Great Britain also uses a points system to withhold or reduce an award ‘on the basis of a applicant’s character, as shown by his or her criminal convictions, even where these are unrelated to the incident for which the claim is made’ (Criminal Injuries Compensation Authority, 1996, p.14). Penalty points are based on the type and/or length of any sentence imposed by the courts together with the time between the date of sentence and the receipt of the application. Sentences imposed after an application has been made are also taken into account. Ten or more points result in a 100% reduction of the claim, whilst 0–2 points results in a 0% reduction. Imprisonment, whether suspended or not, includes the sentence of juvenile offenders to an institution or other custodial sentence. Mitigating factors, such as whether the injury resulted from the applicant’s assistance to the police, are also considered after the points system has been used to assess whether an award should be reduced or withheld.
No other examples could be found of jurisdictions in which the criminal record is used as a basis to reduce or reject compensation.
The victim’s conduct before, during and after the offence can be grounds for reducing or rejecting compensation. The applicants, in most schemes, must take steps to mitigate the injury they have suffered and are required to have reported the crime. In countries such as Finland and Germany, compensation may be reduced or withheld if the victim contributed to the incident which caused the injury (Söderholm, 1996, p.171 and Kaiser & Kilchling in Greer (ed), p.275). The Dutch compensation scheme requires that the victim is completely innocent and is in no way responsible for the offence (Wemmers & De Beer, 1996, p.412).
When considering the reporting of crime, it seems rational that only crimes that are reported need to be considered for compensation. Furthermore, establishing the criterion that crimes have to be reported timeously and that full co-operation with the police is a prerequisite for receiving compensation, suggests that a compensation scheme could actually be used to strengthen the criminal justice system. Reporting rates, through the 'incentive' of compensation, could therefore increase.
In some schemes it must be clear that applicants have not contributed to their own misfortune by the use, for example, of alcohol or drugs. This could result in a reduction or the withholding of a claim as it does in Great Britain.
Applicants in most schemes must not have renounced a claim against the offender if they wish to be eligible for compensation from the state. Applicants must also be prepared to co-operate with the police or prosecutorial services.
The process for applying for State compensation, in most countries, can be summarised as follows:
The process itself has a multitude of variations in different countries and is also discussed in more detail in Chapter 7 of this report. In Northern Ireland, the entire process is generally dealt with by lawyers on behalf of the victim. The victim's lawyer makes the application and then 'negotiates' with the compensation agency's (a quasi-independent executive government agency) lawyers or case workers until a figure is agreed upon. If agreement cannot be reached, the process can go to court.[45]
In Denmark the victim of crime who seeks compensation files a claim with the police. The Victim Compensation Board determines applications. The Board is appointed by the Minister of Justice and consists of three members (Lerche, 1996, p.149). In terms of section 10 of the Danish Victim Compensation Act, if the victim fails to file a claim for damages in the course of criminal proceedings against the offender, compensation may not be awarded (Lerche, 1996, p.140).
In Finland, a person injured as the result of a crime makes a written application to the State Treasury, a procedure for which the assistance of a lawyer is not necessary (Söderholm, 1996, p.166). In France, a claim for compensation is made by delivering a petition to the Crime Victims’ Compensation Commission. In Germany, a claim is made against the state and usually administered by the Länder.
Schemes vary between those that deal with cases on an individualised basis where awards are based on the specific injuries sustained by a specific applicant, and those that set out a relatively fixed tariff structure with awards set by the nature of the injury. Generally, the former conforms more with the general principles of restitution, while the latter is often swifter, more predictable, transparent and (usually) cheaper.
Countries such as Great Britain have moved towards a tariff-based compensation scheme, providing for 330 injury descriptions to which specified monetary compensation awards are attached for amounts ranging between £1,000 and £250,000 pounds. Such awards are for pain and suffering and include a small unquantified element for financial loss or expenses. Separate payments are made in addition for loss of earnings and earning capacity, as well as for costs of special care and reasonable funeral expenses. Compensation in the British scheme is also awarded to dependants for the cost of replacing a deceased parent’s parental services. No award may, however, exceed £500,000.
Northern Ireland, on the other hand, currently uses common law compensation principles such as those used in civil damages proceedings in the assessment of compensation claims. It has not adopted a tariff-based scheme in the awarding of compensation. The objective of the common law approach to the assessment of compensation is to place the victim in the position he or she would have been had there been no injury, insofar as this can be done by the payment of money. Each case is therefore dealt with on an individual basis. The ‘once and for all’ rule applies, preventing further consideration of the case once compensation has been determined and paid. Where uncertainty arises as to whether a victim can claim, or the amount that should be awarded, this is referred to the court for decision (Bloomfield et al., 1999, p.36 & p52).
Jurisdictions such as Finland provide minimum and maximum compensation awards for various types of injuries and a maximum award in respect of loss of earnings and maintenance.
4.6.2 Compensation for actual financial losses
A victim can be compensated following injury for loss of earnings (both past and future), all reasonable expenses (including medical expenses), any other pecuniary or financial loss resulting from the injury (such as the cost of care, loss of free medical and life insurance, loss of private use of a company car), and for pain and suffering, as well as loss of amenities caused by the injury. Many schemes do not allow claims in respect of each of these heads, providing more limited compensation. For example, there is no general award for pain and suffering based on the nature of the injury sustained. Such schemes limit compensation to actual financial losses sustained, including loss of earnings or maintenance, the cost of medical care or treatment and the reimbursement of medical expenses to a maximum amount. Examples of such schemes include Austria, which limits compensation to actual financial losses incurred as a result of injury.
Many schemes compensate for losses attributable to psychological effects of the crime, although the criteria for determining the extent of psychological suffering is often based on medical and psychiatric models. In this sense, a specific diagnosis (e.g. post-traumatic stress disorder, see 2.5.2 above) is often necessary, or significant mental stress and consequent impacts will need to be shown, i.e., loss of job due to psychological trauma.
In Israel (for victims of what is deemed terrorist violence), great emphasis is placed on financial support or benefits in kind within the framework of regular contact, counselling and support (Bloomfield et al., 1999, p.173). Germany provides compensation for medical treatment, recuperation and physical rehabilitation but its compensation scheme makes no express reference to the payment of compensation in respect of psychological injury or for mental health costs (Kaiser & Kilchling, 1996, p. 279).
The Netherlands awards compensation for pecuniary losses, which expressly includes the cost of seeing a psychiatrist (Wemmers & De Beer, 1996, p.412). Norway, too, provides compensation for the psychological effects of a violent act that caused personal injury, but not where the injury constitutes an insult (Brottveit, 1996, p.452). Compensation schemes in the United States vary in their approach to payment for mental health counselling, with some states such as Florida providing greater benefits to children but with most capping the amount that can be claimed (Bloomfield et al., 1999, p. 164-5).
Most schemes set upper and lower limits for compensation. Small claims are often excluded by setting reasonably high lower limits for claims. This is used as a cost- saving technique, although such an approach may disadvantage those who have suffered a relatively small amount of damage but where the cost is a substantial proportion of their low income. Both Northern Ireland and Great Britain provide compensation to claims of a minimum of £1 000 pounds (about R10 000), with Great Britain limiting compensation awards to a maximum of £500 000 pounds. Ireland on the other hand considers compensation claims from as little as £50 pounds (about R500). The majority of state compensation programmes in the United States have a maximum compensation limit equivalent to £25 000 pounds (about R250 000), with separate caps on different heads of compensation (Bloomfield et al., 1999, p. 164). In Norway, state compensation is limited to Kr 200 000 (£20 000 pounds or about R200 000), while in the Netherlands it is limited to the equivalent of £23 000 (about R23 000) and in Portugal to £17 000 (about R17 000).
Most schemes have provision to make some funds available if individuals have urgent needs and cannot wait on the longer process of processing claims. In practice these are usually limited to cases of extreme financial hardship, such as the death of a breadwinner, crisis intervention, temporary shelter and food. In compensation programmes in the United States these awards are often limited to $500 or $1,000. Such payments have given rise to debates on the basis that many believe that these are the responsibility of victim assistance programmes rather than compensation schemes (Bloomfield et al., 1999, p. 165).
Most claims are paid out in a lump sum, rather than using periodic payments (though there are examples of using the claims as a basis for a state pension/welfare payment). Lump sum payments can be problematic as they fail to help the victim over time, but they are easier to administer. Pension payments can create more of a sense of stability and financial security (especially following the death of a breadwinner, which can effect some dependants over their whole lives). However, pension schemes can cause the individual to remain psychologically dependent on the compensation scheme leading to a state of ‘compensation neurosis’[46] where victims never move beyond their victim status. In Spain, whilst compensation is normally paid in a lump sum, extraordinary pensions are paid to victims of terrorism in respect of injury and death at twice the normal pension payable (Bloomfield et al, 1999, p. 169). Austria, Italy and Sweden are further examples of countries that make provision for the periodical payment of compensation. Austria normally pays damages for loss of earnings by way of a periodical pension, although payment by way of a lump sum is not excluded (W Raschka ‘Austria’ in Compensating Crime Victims : A European Survey edited by D Greer Freiburg: Max-Planck Institut 1996 p.25). Germany and other countries make provision for the payment of pensions for the disabled.
All schemes allow the applicant to appeal against a decision of the body granting compensation. Appeals are permitted against the refusal of an award or the amount awarded. Often an internal appeal procedure precedes an appeal by the courts. In some schemes, a review is undertaken by a review panel. It has been proposed in jurisdictions such as Northern Ireland that cases should be allowed to be re-opened if an injustice would otherwise occur, such as if injuries persist. Such provisions are however rare. In Finland, lawyers within the State Treasury make a decision regarding a claim. If applicants are dissatisfied, they may appeal to the Insurance Court within 30 days of being notified of the decision but have no right to an oral hearing, as, for example, in Britain (Söderholm, 1996, p.167).
The creation of a compensation scheme can open new markets, particularly for lawyers and doctors whose services are needed either to lodge or prove claims. It is important to find mechanisms that ensure that victims are the major beneficiaries, rather than the professionals, and that the costs of running the scheme do not exceed the benefits payable to victims. This has been raised as a problem in Northern Ireland where the scheme involves many lawyers, as it is based on a 'common law' approach to compensation.[47]
Several of the schemes have clauses in their founding legislation which aim to ensure that the scheme is adequately publicised. Schemes in Great Britain, Northern Ireland and the District of Columbia have developed supporting explanatory documentation, which provides a basis for applicants to understand their rights to compensation with relative ease in terms of the relevant scheme.
As previously argued, compensation schemes work best when run parallel to other victim support services. Having victim support services that can assist victims with claims dramatically reduces the incidence of false claims and the costs of lawyers’ fees. Compensation should not stand alone, but rather be seen as a component of a comprehensive victim empowerment programme. In Great Britain, for example, victim support is seen as integrally linked to the compensation scheme; support workers help victims fill out forms for compensation and hook them up to other services.[48] It has been found that the more victims get from the other services, the less the need for compensation. The best course of action is for victims to receive the adequate services and compensation for the costs incurred because of the crime. Currently, in Great Britain £18 million is made available a year to victim support agencies, which are seen as critical to a proper victim compensation scheme. Senior policy-makers, and the victim support programme, feel even more should be allocated.[49]
4.9.4 Fraud[50]
Fraud is a problem within the South African context. Medical insurance fraud in South Africa (in the private sector) is estimated to amount to about R750 million a year.[51] Recently, high levels of fraud have also been detected in the Road Accident Fund (Business Day, August 29, 2000) and the Department of Welfare (Business Day, September 15, 2000).
The compensation schemes in Great Britain and Northern Ireland report low levels of fraud.[52] Fraud is kept to a minimum because of the many checks and balances in the system, such as the proof of medical records and police reports required. The record keeping by these agencies, unlike in South Africa, is also efficient and reliable. Large numbers of staff also allow caseworkers to follow and track cases carefully. However, in the South African context, the incidence of fraud could be considerably higher. Police and hospital staff could be paid to falsify records, and the likelihood of a high staff to applicant ratio is small given limited resources.
The issue of internal fraud will also need consideration. People working for the compensation body could falsify claims, working with outside accomplices. This has occurred in Great Britain in relation to their compensation fund.[53] Recently in South Africa, employees of the Road Accident Fund working with outsiders were responsible for extensive fraud. Typically this occurred when one of the fund's claims handlers decided on a higher than justifiable level of compensation and split the difference with the attorney who lodged the claim (Business Day, August 29, 2000).
Appropriate precautions would have to be implemented in order to avoid such incidences of fraud. Prosecution of offenders is also key to discouraging potential fraud, and this is instituted immediately in Great Britain and Northern Ireland if any irregularities are discovered. However, above all, a well-resourced system, with levels of checks and verifications of claims, as well as reliable police officers, is the best mechanism for the prevention of fraud.
[38] Maximum compensation is determined from time to time by the Minister in the Government Gazette. Current figures are gazetted in Government Notice R1410 of 30 October 1998 (Government Gazette 19435).
[39] In this regard see the case of S v Medell 1997 (1) SACR 682 (C).
[40] A sentence may be suspended for a period not exceeding five years, apart from cases in which a minimum punishment is prescribed by law. Unlike suspension, in which part of a sentence may be suspended, only the whole of a sentence may be postponed. The postponement of part of a sentence is not permitted.
[41] S v Charlie 1976 (2) SA 596 (A)
[42] At the time of going to print, it was announced by the Northern Ireland Secretary of State that a British-style tariff scheme will be introduced in Northern Ireland in 2002. The tariff will be based on Northern Ireland awards and the compensation levels are therefore expected to be somewhat higher than that in Great Britain. It is also likely that Northern Ireland will do away with the right of appeal to the courts and replace it with review by a Compensation Review Authority, as in Great Britain. Other recommendations are also under consideration and draft legislation is to be published early in 2001 (Personal communication, Desmond Greer, 12 September 2000). This report outlines the details of the Northern Ireland scheme as it stands and before any of the proposed changes.
[43] In Great Britain and Northern Ireland common law spouses are deemed to be a man and a woman who have lived together as man and wife for at least two years. In Ireland, the requirement is three years.
[44] Interview with Denis Stanley, Head of Northern Ireland Compensation Agency, 18 April 2000.
[45] Interview with Denis Stanley, Head of Northern Ireland Compensation Agency, 18 April 2000.
[46] Interview with Desmond Greer, Queens University, Belfast, 18 April 2000.
[47] Interview with Sir Kenneth Bloomfield, Stormont, Belfast, 27 April 2000.
[48] Interview with Richard Thew, Head of the Victims & Compensation Team of the British Home Office
Justice and Victims Unit , 19 April, 2000.
[49] Interview with Richard Thew, Head of the Victims & Compensation Team of the British Home Office
Justice and Victims Unit , 19 April, 2000.
[50] Also see Chapter 7, 7.10 for more discussion.
[51] Figure published in Discovery, Issue Number 5, Winter 2000, p.48.
[52] Interview with Richard Thew, Head of the Victims & Compensation Team of the British Home Office
Justice and Victims Unit , 19 April, 2000.; Interview with Desmond Greer, Queens University, Belfast, 18 April 2000; Interview with Sir Kenneth Bloomfield, Stormont, Belfast, 27 April 2000; Interview with Denis Stanley, Head of Northern Ireland Compensation Agency, 18 April 2000.
[53] Interview with Richard Thew, Head of the Victims & Compensation Team of the British Home Office
Justice and Victims Unit , 19 April, 2000.
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