Foilsiú
54758 (24 January 2023)
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
The Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of a Single Member
Name of applicant: [ ]
Application number: 54758
Date of incident: [ ]
Date of application: [ ]
Decision outcome: No award made: no claim for expenses falling under the terms of the Scheme arise.
1. [ ] (‘the applicant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’).
2. In her application for compensation under the Scheme, dated [ ] (and received by the Tribunal Secretariat on [ ] ) the applicant stated that she sustained stab wound injuries on [ ]. She details the pain and suffering caused by those injuries in her application form.
3. The facts of the incident are synopsised in the Garda Report, received by the Tribunal Secretariat on [ ]. It appears from that that the applicant was socialising in an apartment with a number of other people. One of these people became aggressive and tried to kiss the applicant. He became enraged when she refused. This person stabbed the applicant multiple times in the [ ]. Medical reports on file corroborate these injuries. The applicant’s assailant was convicted of [ ]. He was sentenced to [ ] imprisonment.
4. The Tribunal must first consider delay, as Paragraph 20 formerly para 21) of the Scheme states (with emphasis added):
“Applications should be made as soon as possible but, except in circumstances determined by the Tribunal to justify exceptional treatment, not later than three months after the event giving rise to the injury”.
5. In this case the incident in question occurred [ ]. In the normal course the application should therefore have been submitted on or before [ ]. Instead, it was received by the Tribunal Secretariat on [ ], some 5 months after the deadline set by the Scheme.
6. It is therefore necessary to consider whether the circumstances of this case require exceptional treatment of its admission notwithstanding the delay. In this regard, the Tribunal notes that the Scheme is remedial in nature and circumstances giving rise to exceptional treatment should be interpreted in a “broad, liberal and generous manner responsive to the circumstances of the victim of crime in each case”: Bowes v CICT [2022] IEHC 703 [70].
7. In her application form the applicant states that the reason her application was submitted late was that she did not know that she was able to make a claim. In her solicitor’s cover letter it is noted that an extension of time is required, though states the belief that “the 3-month time limit is unreasonable and may be in breach of EU law. In any event the delay in making this application is because the applicant was unaware of the scheme until recently”. Further, in a letter of [ ] the applicant’s solicitors state the applicant was not aware of the Scheme until it was brought to her attention by her solicitors shortly before her application was submitted. They ask how the applicant was expected to know about the scheme when it was not drawn to her attention, in particular during the criminal process.
8. While even tight deadlines are permissible at EU law (unless they operate to effectively extinguish a right), it is not necessary to consider the EU law dimension here. The application was five months late and the reason given was that the applicant did not know of the Scheme and was not told about it, even through the course of criminal proceedings. The Tribunal has had the benefit of medical reports which show significant injuries. In this context, five months is a relatively short period of time, and it appears that the applicant moved quickly after learning of the Scheme. These are circumstances which the Tribunal accepts should permit exceptional treatment. The application is therefore admitted for further consideration.
9. From the foregoing, I am satisfied that the applicant has established, on the balance of probabilities, that she was a victim of a crime of violence and sustained personal injury which is directly attributable to that crime of violence. She has raised circumstances which warrant the application’s consideration outside the normal deadline. Accordingly, I admit the application for consideration under the Scheme.
10. The Tribunal is appointed under an administrative Scheme which it must apply. Its sole function is to award compensation injuries sustained as a consequence of violent crime. In doing so it is restricted to making awards in line with Paragraph 6 of the Scheme, entitled ‘Nature and Extent of Compensation’. This sets out that awards of compensation are on the basis of the Civil Liability Acts, save for various exceptions: it may not award compensation for e.g. aggravated damages and damages for pain and suffering (this latter exclusion is at Para 6(e) of the Scheme).
11. Rather, the Tribunal is empowered to award compensation for losses and expenses which are consequential on the criminally inflicted injury. This might cover the cost of treatment or loss of earnings.
12. In a letter dated [ ], the applicant’s solicitor states that the applicant was not working at the time of this incident and she claims no loss of earnings or medical expenses. It states that she is only seeking fair and adequate general damages. This is reiterated in a letter dated [ ] and again on [ ].
13. In the applicant’s solicitor’s cover letter submitting the claim it is stated:
“Please be advised that our client is seeking general damages in relation to her injuries and her reasonable legal costs entailed in the prosecution of this claim”.
14. The position is that the applicant is seeking damages which the Tribunal is not empowered to award. Article 12(2) of Directive 2004/80 imposes an obligation on Member States to provide a scheme on compensation to victims of violent intentional crime, and that the compensation should be fair and appropriate. However the Directive does not make detailed arrangements as to how Schemes should be extrapolated, conferring upon Member States discretion in that regard. This discretion means that the compensation under the adopted Schemes does not have to correspond to a “complete reparation of material and non-material loss suffered by that victim”: C-129/19 Italian Presidency of the Council of Ministers v BV at paragraph 60.
15. The discretion in the means of implementing the Scheme conferred on Member States means that the EU rights it confers are not directly applicable. Rather, they are mediated via the wide discretion given to Member States to implement appropriate Schemes. It is not for this Tribunal, appointed under the Scheme within the exercise its State’s discretion, to come to its own view as to whether or not the framing of compensation under the Scheme is fair and appropriate. It must simply apply the State’s choices as framed by the Scheme. It is therefore bound by paragraph 6(e) of the Scheme and cannot award damages in respect of pain and suffering. That being the case, no compensation claimed by the applicant in this case falls under the terms of the Scheme.
16. The position is that despite its keen awareness of the applicant’s injuries and that they had a real impact on her, the Tribunal has no power to award compensation in this case.
17. The applicant’s solicitor also set out a claim for legal costs within the application. The Scheme itself provides that no legal costs can be awarded under its terms, though there is an entitlement to be accompanied by a legal adviser: Para 27. This issue of legal aid, or awards of costs under the Scheme was considered by the Court of Appeal in Doyle and Kelly v CICT [2020] IECA 342, in particular at paragraph 107 onwards in which the non-adversarial nature of the process, and the assistance given by the Tribunal’s Secretariat was noted, and that such processes can vindicate due process rights under Article 6 ECHR. The Court held that the Article 47 of the EU Charter on Fundamental Rights and the principle of effectiveness at EU law did not require legal aid in the context of the CICT Scheme. It is clear from the foregoing that the Scheme gives the Tribunal no power whatsoever to award legal costs to the applicant.
Tricia Sheehy Skeffington
Member, Criminal Injuries Compensation Tribunal
24 January 2023