28/04/2022
Death in Europe - compensation for the loss of a loved one in cross-border cases
When a person is killed as a victim of a crime, the death almost always comes as a massive shock to the loved ones left behind. The end of a loved one can bring profound sorrow and grief, and unexpected financial costs. Families are often unprepared for the funeral and burial costs, counselling expenses, and loss of income that comes with the death of a close relative. In most legal systems, the relatives of the deceased can seek compensation. However, there are considerable differences in the amounts of compensation available and who can claim it. In the European Union, cases concerning traffic accidents aboard are prevalent. In these situations, the families seeking to obtain compensation for their loss will often find that the compensation systems in some Member States are much more generous and favourable to the victims than in others.
An Italian family approached our office in such a situation. An Italian national had travelled to Finland on holiday and tragically lost his life in a traffic collision. The victim had been a car passenger who veered off the road and crashed. The driver of the vehicle had been charged with causing a severe traffic hazard (Finnish Criminal Code, Chapter 23, 2 §) and grossly negligent homicide (Finnish Criminal Code, Chapter 21, 9 §), and was convicted on March 9, 2022. Back in Italy, the family of the victim was left grieving. Having lost a beloved family member, the victim's close relatives wanted to seek compensation for their loss from the vehicle's driver. Surprisingly, the compensation systems for immediate relatives of a victim could not be more different.
In matters related to compensation for the victims of a crime, Finnish courts will refer to the recommendations made by the Personal Injury Commission of Finland. According to these recommendations, the only persons who can seek compensation for the loss of a close relative are the parent, the child, the sibling, and the spouse of the victim, and in some cases, persons who can be comparable to these categories. In other words, compensation is not usually available for grandparents, cousins, friends, or other individuals. The amount of compensation available varies from about 2 000 euros to 15 000 euros. The courts have discretion over awarding compensation, but they must follow the official recommendations.
In Italy, however, in the same circumstances, the courts will apply the so-called Milan Tables when awarding compensation. According to the Milan Tables, compensation is available to the parent, child, sibling, and spouse of the victim, but also the grandparent. In shocking contrast to the Finnish compensation system, in Italy, the close relative of the deceased can claim from about 24 020 euros to 331 920 euros in compensation. For example, a child that has lost a parent is entitled to a minimum of 165 960 euros in compensation. In other words, the Italian compensation system is much more generous and favourable to the victims than the Finnish system. It can be argued that Finland has a much more extensive social security system that supports the victims of a crime. It is not necessary to seek compensation from the perpetrator. The Finnish compensation system came as a shocker for our Italian clients who had lost a loved one on a trip to Finland. Clearly, from their point of view, it would be more advantageous to apply the Italian recommendations for compensation.
In its decision on March 9, 2022, the Southwest District Court of Finland stated that, according to Article 4 (1) of the Rome II Regulation, "the law applicable to a non- a contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur." In other words, since the traffic collision took place in Finland, the Finnish law must be applied. The court also referred to the judgment C-350/14 of the European Court of Justice as of December 10, 2015. In this case, a Romanian national died in a traffic collision in Italy. The European Court of Justice further confirmed that Article 4(1) of Rome II must be interpreted so that the law applicable is determined by the 'direct consequences' of the incident – i.e., the road traffic accident – took place. The damage sustained by the close relatives of the deceased in another Member State must be classified as indirect consequences. By following this precedent, the Southwest District Court concluded that it had no choice but to apply Finnish law. The decision of the District Court has not yet achieved power of law.
It appears that in the European Union, the compensation available to victims varies drastically based on where the damage has occurred. In principle, all EU citizens have the right to enjoy equal treatment. An Italian national who loses a loved one might reasonably expect to claim compensation to the extent that the Italian justice system usually awards it. The stark difference in the amount and extent of compensation available in the various Member States might come off as inegalitarian and unjust to the victims who are already grieving. Especially the difference between the Italian and the Finnish system is particularly noticeable. For example, if a Finnish child were to lose a parent in a traffic collision in Italy, that child would benefit from the very generous Italian compensation system and the advanced Finnish welfare system. An Italian child who loses a parent in Finland would be in a much more unfavourable position. The diversity of compensation systems within the European Union raises the question of whether there is equal treatment of compensation seekers.
