Introduction

On 7 June 2021, 299 next of kin had filed claims for compensation of the damages they sustained from the downing of Flight MH17.  In EU member states, victims of a crime can submit a claim for compensation against the suspect for damages that are directly caused by the crime within the criminal proceedings.  The victim therefore does not have to file a claim in a separate civil procedure to get compensation from the suspect: the two proceedings are joined within the criminal trial. When the victim lost his/her life due to the crime, the next of kin has the right to submit the claim for compensation.

In the MH17 criminal trial, the next of kin have submitted claims for compensation for pain and suffering, also referred to as moral damages, or immaterial damages.  While chapter 1 focused on the criminal trial as such, this chapter discusses the compensation claims that have been submitted within those criminal proceedings.

Compensation Claims Joined to Criminal Proceedings

 A victim of a crime that has suffered damages directly caused by the crime is not only a victim in accordance with criminal law, but can also file a claim against the offender as an injured party in accordance with civil law.  To facilitate the victims/injured party, the victims (or their next of kin) can request the criminal court whether their civil law compensation claim can be joined with the criminal trial so that they do not have to go to court against the suspects separately.  The criminal court can then rule on compensation for the victim of a criminal offence as part of the criminal trial.  This is called an adhesion procedure (or adhesive procedure or ancillary proceedings).  

In such an adhesion procedure, the victim submits a claim under civil law against the suspect for the damages that directly resulted from the crime. This means that while the judges apply criminal law to consider the guilt of the suspect, they apply civil law to consider the compensation claim. Civil law is the body of law that governs the relations between persons: the suspect and the victim or next of kin.

Actors

Since the adhesion procedure becomes part of the criminal trial, the actors present in the criminal trial are also present here.  These are discussed in chapter 1. However, in the adhesion procedure, the victim or next of kin has a role different from the role during the rest of the criminal proceedings, namely that of injured party.

Timeline

The timeline of the compensation claims formally starts on 13 April 2021, when 290 next of kin submitted claims for compensation from the four suspects and these next of kin became "injured parties" in the legal proceedings.  The timeline for these civil compensation claims runs alongside the timeline of the timeline of the criminal proceedings (chapter 1), because they have been joined to those proceedings.  From the start of the criminal proceedings, when on 19 June 2019 the Prosecution announced that it would indict four individuals, the next of kin were informed how they could submit a claim for compensation to the Court.  

Between the start of the criminal trial on 9 March 2020 and 13 April 2021, procedural aspects and scheduling of the next of kin's right to submit a compensation claim were discussed during hearings between the procedural aspects of the criminal trial as such.  

On 31 August 2020, the Court assumed jurisdiction and considered that Ukrainian law seems to apply to the compensation claims.  It will give a final decision on these matters in its final verdict.    

In its interlocutory decision on 25 November 2020, the Court decided that the victims’ counsel could have access to more documents of the case file, provided they treat them confidentially.  They are allowed to discuss the contents of the case file with their clients, but not share the case file itself, because to guarantee a fair trial, the case file and particularly identifying information on the suspects should not become public.  The Court moreover decided that they would not order or instruct the victims to disclose the agreement with Malaysia Airlines, but that as part of their compensation claim, injured parties that join the criminal trial must provide information on the harm for which the compensation is sought and whether and to what extent that harm has been compensated by others.

On 13 April 2021, the victims’ counsel submitted 290 claims for compensation against the four suspects.  

On 22 April 2021, the Court decided that the claims appear to be admissible, and would thus be part of the merits phase of the criminal trial.  The Court will still have to examine the compensation claims fully, including their admissibility, and may therefore in its final verdict still declare them inadmissible.  

On 20 May 2021, another nine claims were submitted.  In addition, two claims were submitted by next of kin that are not represented by the formal victims' counsel.  In total, there are thus 301 claims for compensation that will be discussed during the merits phase of the criminal trial.

The merits phase of the criminal trial started on 7 June 2021.  

In September and November 2021, the next of kin address the Court and thereby share what impact the downing of MH17 has had on them.

On 2 November 2021, the Court will discuss the compensation claims.  In preparation of this oral discussion of the claims, the Court has urged the defense to respond to the compensation claims in writing no later than 1 November 2021.  The Prosecution has advised positively about the compensation claims.  When all parties have responded to the victims’ counsel’s submissions and each other’s arguments, the Court will decide on the compensation claims during the final verdict.

The next of kin that have not yet submitted a claim for compensation in the criminal proceedings can do so until the Prosecution presents its case in the "requisitoir," which is scheduled in November 2021.

Stages of Proceedings

The Court will assess the compensation claims during the criminal proceedings, and therefore these proceedings alsoare divided in the same two stages of the proceedings: the procedural stage andthe merits stage.  

Procedural Stage

As was discussed in chapter 1, after the criminal proceedings were initiated on 19 June 2019 when the Prosecution announced that it would prosecute four suspects for their role in downing MH17, the next of kin were notified and informed by the victims' counsel about the date of the trial as well as about how to submit a claim for compensation from the suspects.   

Throughout the procedural stage of the criminal trial, the compensation claims were discussed particularly related to procedural aspects, admissibility and scheduling. It also gave the opportunity to the victims’ counsel to explain the position of the next of kin. For example, on 31 August 2020, the victims’ counsel emphasized that for the next of kin the purpose of the trial is to obtain some form of redress, and that the compensation for the damages is a means to recognize their loss. 

One aspect that was discussed throughout the procedural stage and continues into the merits stage is the question whether the harm for which compensation is claimed is already compensated by others.  According to Dutch civil law, under certain circumstances, a compensation claim may only be awarded to the extent that the damage is not already compensated otherwise.  In the situation of MH17, the Court therefore wants to know whether the next of kin were or will be compensated by other parties, such as Malaysia Airlines or insurance companies, or through other legal proceedings, and what type of compensation this is: for moral damages, which is claimed here, or, for instance, for material damages.  If Dutch law would apply, and if the damage that is claimed by the next of kin would already have been fully compensated, the Court may decide that the next of kin are not entitled to an additional compensation claim against the perpetrators, unless they find this unreasonable.  

However, if in its final verdict, the Court conclusively finds that Ukrainian law applies, this appears to be beneficial to the next of kin.  Under Ukrainian civil law, the judge has more freedom to decide whether and to what extent other compensation that is received is accounted for in awarding further compensation.  

Another aspect for which it matters if Ukrainian or Dutch civil law applies relates to the type of compensation that is claimed from the defendants.  The next of kin claim moral damages, in accordance with Ukrainian civil law. Under Dutch law, in accordance with legislation that entered into force on 1 January 2019, moral damages can now also be claimed, but only for harm that occurred after 1 January 2019.  Ukrainian law recognized moral damages already at the time of the MH17 crash.  The Court therefore also needs to decide whether – if it decides definitively that Ukrainian law indeed applies –this also means that the right to claim moral damages applies.  This decision needs to decide between differing interpretations of the extent to which foreign law applies in accordance with European legislation and is therefore legally complex.

The MH17 next of kin claim compensation for moral damages; for their pain and suffering.  The claims are based on a fixed sum of €40,000, €45,000 or €50,000 for each relative of each victim, the amount depending on the relatives’ relationship with the victim(s). The Court will consider the claims during the merits stage of the criminal proceedings and will decide in the final judgment whether the defendants, if proven guilty, have to pay compensation to the next of kin.

Merits Stage

Of the 570 next of kin that are represented by the victims’ counsel, 299 have submitted compensation claims that will be considered during the merits phase.  Moreover, two next of kin that are not represented by the formal victims' counsel have submitted claims and more may follow.  They can do so until the Prosecution presents its case in the "requisitoir," which is scheduled for November 2021.  

The next of kin that submit their compensation claim thereby become injured parties to the criminal trial.  During the merits phase, the Court considers the injured parties’ substantiation of their claims for compensation.  This includes proof of the harm and that the harm for which compensation is claimed is directly caused by the crime and thus by the actions of the accused.  It will thereby consider the liability of the accused on the basis of civil law norms.

On 2 November 2021, there will be oral argumentation from all parties on the substantiation of the claims, after which the Court will decide on the claims during the final verdict.  The Prosecution has provided written response and advised favourably on the compensation claims.  The defense is asked by the Court to respond to the compensation claims in writing before 1 November 2021.

As was explained above, it depends on which law is declared admissible to what extent possible compensation payments by third parties are relevant for the potential amount of compensation that the next of kin may be entitled to be awarded.  During the merits stage, the parties will therefore provide argumentation on how the interaction between Ukrainian and Dutch civil law should be interpreted in accordance with European Union rules and private international law.

The compensation claims are dependent on the guilt of the defendants in the criminal proceedings.  Therefore, they may be found inadmissible by the Court if the defendants are acquitted or discharged from prosecution.  If this happens, the next of kin that have submitted a claim can appeal that decision.  They can either join the appeal of the Prosecution or the defense to appeal the decision on their compensation claims, or submit their own appeal.  Only once the judgment or the appeal judgment becomes final, the Court can impose the order of payment on the defendants.

Remedies

Similar to Dutch law, under Ukrainian civil law, the next of kin of victims can claim compensation for damages sustained from the criminal offense.  When the victim has died as a result of the criminal offense, the Ukrainian Civil Code provides for the option that the next of kin file for compensation.  

Ukrainian law provides for two types of compensation when a relative has died: 1) moral damages (or immaterial damages) consisting of mental suffering caused by the wrongful conduct of the perpetrator, and 2) material damages, consisting of compensation for loss of livelihood and funeral costs.

Enforcement of Judgment

If the District Court in The Hague finds it proven that the defendants are guilty of the crimes that are charged and liable for the damages sustained by the next of kin, the Court can award compensation and order the perpetrator(s) to pay the next of kin.  The Court may also impose the "schadevergoedingsmaatregel," which is a legal action that appoints the state as the formal collector of the compensation award.  In this respect, Dutch criminal procedure law offers a special enforcement procedure for damage awarded by the criminal courts, to which an advance payment scheme is added.  This is carried out by the Central Judicial Collection Agency (CJIB; Centraal Justitieel Incasso Bureau), the administrative body that collects all court-ordered fines, state fines and penalties (e.g. traffic fines).  When a criminal court orders an offender to pay damages to victims or the next of kin, this is considered to be a specific kind of criminal fine.  Consequently, the CJIB will take care of the collection of the money from the offender, not to the benefit of the state as normally is the case with criminal fines, but to the benefit of the next of kin whose loss the court has ordered to be compensated.  

Once the CJIB has received the money from the perpetrators, it transfers it to the next of kin.  In addition to this, if the perpetrators have not paid compensation within eight months after the day on which the judgment or appeal judgment has become final, the CJIB may pay (part of) the compensation to the next of kin.  If the accused would be found guilty of murder or manslaughter, the state would pay the full compensation award to the next of kin.  However, if only article 168 DCC (causing a plane to crash) is found to be proven and the suspects are acquitted for murder/manslaughter, there is a maximum of 5000 euros that the state pays to the injured parties that are entitled to compensation from the perpetrators.

If the Dutch state (through the CJIB) pays (part of) the compensation that the court had ordered the perpetrators to pay, the obligation of the perpetrators to pay remains, and the CJIB will try to recover the compensation from the perpetrators.  The Dutch state may consider other options to receive the amount, for instance by seizure of the perpetrators’ assets.[1]  Since the defendants live in Russia and their assets are probably located there, it may be difficult for the Dutch government to recover the amount of compensation.  

The victims’ counsel has requested the Court to decide that if more than one of the accused are found guilty and is ordered to pay, each of the perpetrators can be held "jointly and severally liable" for the total amount since they jointly caused the damage. This means that each perpetrator is then separately liable for the entire damage rather than only a quarter of the damage in case all four suspects are found guilty.

Interaction with Other Proceedings

As was discussed earlier in this chapter, whether the next of kin can claim damage may depend on whether the damage was already compensated through other ways, such as by (the insurers of) Malaysia Airlines or through other legal action. The interaction with other legal proceedings is therefore important and discussed in more detail in chapter 7.