Compensation in a Dutch criminal case: how do you claim it?

If you are the victim of a criminal offence in the Netherlands, you do not have to start separate civil proceedings to get compensation. You can join the criminal case as an injured party (benadeelde partij) under Article 51f of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv), and the criminal court then decides on your claim at the same hearing, without court fees; the main exception is a claim that is too complex for the criminal case, which the court leaves to the civil courts.

When does the criminal court decide your claim, and when not?

The criminal court decides the claim if it can do so without placing a disproportionate burden on the criminal proceedings. If the claim is complex or heavily disputed, the court declares it inadmissible (niet-ontvankelijk) in whole or in part.

This rule is in Article 361(3) of the Code of Criminal Procedure. Inadmissibility is not a rejection. The civil route remains open for whatever the criminal court did not decide.

Who may claim compensation in a criminal case?

The person who suffered the loss directly as a result of the offence. In certain cases, relatives and heirs may also claim.

If the victim has died, the relatives listed in Articles 6:107 and 6:108 of the Dutch Civil Code (Burgerlijk Wetboek, BW) may claim funeral expenses and loss of maintenance. Since 1 January 2019, a fixed group of close relatives can also claim bereavement damages (affectieschade). An heir may pursue a claim that the deceased already had.

Someone who has taken over the loss, such as an insurer that has paid out, cannot join the criminal proceedings. That party must go to the civil court.

What can you claim?

In practice there are three categories: material loss, non-material loss, and the specific claims of bereavement and shock damages. You can also claim statutory interest.

Material loss

Material loss is everything with a price attached. Think of medical costs that were not reimbursed, damaged property, loss of income, travel to hospital and to the hearing, and the cost of help at home. The legal basis is Articles 6:95 and 6:96 of the Civil Code.

Non-material loss (smartengeld)

Non-material loss compensates pain, suffering and loss of enjoyment of life under Article 6:106 of the Civil Code. The court assesses it by comparing awards in similar cases, not by a formula.

In criminal cases the Supreme Court (Hoge Raad) has accepted that some offences are so serious that non-material loss can be assumed without further evidence, but in most cases you need to show the actual effects on you.

Bereavement damages and shock damages

These two are often confused. Bereavement damages compensate a fixed group of close relatives for the death, or the serious and permanent injury, of the victim. The amounts are fixed by regulation.

Shock damages compensate your own mental injury caused by directly witnessing the offence or its consequences. In its judgment of 28 June 2022 (ECLI:NL:HR:2022:958), the Supreme Court clarified the requirements for criminal cases. A diagnosis of a recognised psychiatric condition is no longer strictly required. The injury must be serious enough in nature, duration or consequences, and it must be objectively established, normally by a qualified expert such as a psychiatrist, psychologist or general practitioner.

Statutory interest

Statutory interest under Article 6:119 of the Civil Code runs from the day the loss arose. Claim it expressly; it is often forgotten and can add up over a long procedure.

How do you join the criminal proceedings?

You join with the injured party form (voegingsformulier). Victim Support Netherlands (Slachtofferhulp Nederland) or the Public Prosecution Service’s victim desk usually sends it once a suspect has been identified.

File the form before the hearing starts. You can still make a claim at the hearing itself, but a well-documented form filed in advance is much more likely to succeed.

Evidence is everything. Invoices, medical records, income statements from before and after, photos and repair quotes do the work. The suspect may dispute the claim, and a figure that cannot be traced back to a document will usually be rejected or estimated lower.

How does the court assess each item of the claim?

Item by item, based on documents. The example below shows how that works.

An illustrative example: someone is assaulted and ends up with a broken wrist, four weeks off work and a damaged phone.

• The phone is the simplest item. A purchase invoice and a repair quote establish the loss and its amount, with a deduction for depreciation if the phone was not new.
• Medical costs are shown by the health insurer’s statement of what was not reimbursed and what fell under the compulsory excess (eigen risico). The excess can be recovered.
• Loss of income is shown by payslips from before and after the assault. A self-employed person uses figures for the same period in earlier years.
• Travel to hospital and to the hearing is claimed at a fixed rate per kilometre.

Non-material loss is the item most often left without evidence. A doctor’s letter describing the injury, the treatment and the expected recovery does more for this part of the claim than any description of how the incident felt. If the effects are psychological, a statement from a treating practitioner is essential. Without it, the court has nothing to base an award on.

What is the compensation order, and does the State pay in advance?

If the court awards your claim, it will usually also impose a compensation order (schadevergoedingsmaatregel) under Article 36f of the Dutch Criminal Code (Wetboek van Strafrecht). The Central Judicial Collection Agency (CJIB) then collects the money for you, so you do not have to chase the convicted person yourself.

The advance payment scheme (voorschotregeling) goes further. If the convicted person has not paid in full within eight months after the judgment became final, the State pays you the outstanding amount. For sexual offences and certain serious violent offences there is no maximum. For other offences the advance is capped at €5,000. The State then tries to recover the money from the convicted person at its own risk.

What happens if your claim is declared inadmissible?

You can take the claim to the civil court. Inadmissibility means only that the criminal case was not the right place to decide it, usually because it needed more evidence or debate than the criminal case allowed.

A claim for personal injury that is left to the civil courts is a specialist field outside the criminal case. For that part, a specialised personal injury lawyer is the right point of contact.

Before the civil court, the criminal judgment carries a lot of weight. Under Article 161 of the Code of Civil Procedure, a final criminal conviction counts as conclusive evidence of the facts on which it is based, unless the other party proves otherwise.

If the offender is unknown, cannot pay or is never prosecuted, victims of violent and sexual offences can apply to the Violent Offences Compensation Fund (Schadefonds Geweldsmisdrijven). It pays a fixed amount based on the seriousness of the injury, regardless of any criminal case.

Can you recover the costs of legal assistance?

Yes. Under Article 592a of the Code of Criminal Procedure you can claim the costs of legal assistance, and the court decides on them separately from the claim itself.

Victims of serious violent and sexual offences are also entitled to free legal assistance from a victims’ lawyer, regardless of their income.

Which deadlines apply, and what happens on appeal?

You can maintain your claim on appeal, but you cannot increase it. Meanwhile, the ordinary civil limitation periods keep running for anything left to the civil courts.

If you joined the case at first instance, your claim stays part of the case on appeal, up to the amount you claimed at first instance (Article 421 of the Code of Criminal Procedure). If your claim was awarded in full and only the defendant appeals, you do not need to do anything to keep it alive. It is still wise to check your position with the victim desk rather than assume it.

A claim in tort is in principle time-barred five years after you became aware of both the loss and the person responsible (Article 3:310 of the Civil Code). For loss caused by a crime, the claim does not expire as long as the criminal prosecution is not yet time-barred. Still, do not leave a decision of inadmissibility lying around.

What should you check as a victim?

• Have you received the injured party form, and will you file it before the hearing starts?
• Is every amount backed by an invoice, payslip, insurer’s statement or medical letter?
• Have you claimed statutory interest and the costs of legal assistance under Article 592a Sv?
• Is the personal-injury part straightforward enough for the criminal court, or should it go to a specialist?
• If part of the claim is declared inadmissible, have you diarised the five-year limitation period?

What should you check as the defendant facing a claim?

• Is each item of the claim supported by documents, or is it a figure without evidence?
• Is the claim so complex that it places a disproportionate burden on the criminal case (Article 361(3) Sv)?
• Did the claimant suffer the loss directly, or is it an insurer or other third party that cannot join?
• Can you show that a compensation order under Article 36f Sr would be disproportionate given your means?

What can we do for you with a claim in a criminal case?

Our criminal lawyers act for victims and for defendants:

• We draw up and document the injured party claim and file it before the hearing.
• We present the claim at the hearing and claim the costs of legal assistance.
• We respond to a claim on behalf of the defendant, item by item.
• We check whether the advance payment scheme applies once eight months have passed.
• We refer the personal-injury part to a specialised personal-injury lawyer where it goes to the civil court.

Summary

• As a victim you can join the criminal case as an injured party under Article 51f of the Code of Criminal Procedure, without court fees.
• You can claim material loss, non-material loss and, in specific cases, bereavement or shock damages, plus statutory interest.
• Evidence decides the outcome: every amount should be backed by a document.
• With a compensation order the CJIB collects for you; after eight months the State advances the amount, without limit for sexual and certain violent offences and up to €5,000 for other offences.
• If your claim is declared inadmissible, you can still go to the civil court; watch the five-year limitation period.

Frequently asked questions